[*] This Discussion took place at the Fifth Annual Conference for Mediators and Arbitrators presented by the Florida Dispute Resolution Center on August 23, 1996, in Orlando, Florida. Many thanks to Sharon Press, Director of the Florida Dispute Resolution Center, who was responsible for the casting of this discussion and who suggested various scenarios. Some of the scenarios used in the discussion are based on actual grievances filed with the Florida Mediator Qualifications Board. Return to text.

[**] Dean and Professor, Northern Illinois University College of Law. B.A., Columbia University, 1965; J.D., Northwestern University, 1972. Return to text.

[1] See Act effective July 1, 1987, ch. 87-123, 1-7, 1987 Fla. Laws 995, 995-97 (codified as amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)). Return to text.

[2] See FLA. R. CIV. P. 1.700-.830. These rules were adopted on December 31, 1987, and became effective on January 1, 1988. See In re Proposed Rules for Implementation of Florida Statutes Sections 44.301-.306, Rules of Civil Procedure, 518 So. 2d 908, 909 (Fla. 1987). Return to text.

[3] See, e.g., Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 24 (1996) (presenting a four-quadrant grid describing the varieties of mediator behavior as facilitative-broad, facilitative-narrow, evaluative-broad, and evaluative-narrow). For a critical view of evaluative mediation, see Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 21, 32 (1996) (criticizing evaluative mediation for perpetuating or creating an adversarial climate and being inconsistent with the primary objectives of mediation: to promote self-determination of parties, to help the parties examine their real interests, and to develop mutually acceptable solutions). The evaluative/facilitative terminology has already found its way into the legal practice literature and has been adopted by commentators offering advice as to how lawyers might represent clients in mediation. See, e.g., JOHN W. COOLEY, NAT'L INST. FOR TRIAL ADVOCACY, MEDIATION ADVOCACY app. A-2 at 86-88 (1996) (recommending that lawyers and their clients decide whether they want an evaluative or facilitative mediator, or a combination of both, prior to the mediator selection process and describing the roles and functions that various types of mediators may assume to assist parties in resolving disputes). Return to text.

[4] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.090. Return to text.

[5] FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.070. Return to text.

[6] Professor Moberly chaired the Standards Subcommittee of the Florida Supreme Court Committee on Mediation and Arbitration Rules. For further discussion of the Committee's work and related issues, see Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. L. REV. 701 (1994). Return to text.

[7] See Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997). Professor Moberly's article is based on an address delivered to a symposium sponsored by the South Texas Law Review on October 25, 1996, entitled "The Lawyers Duties and Responsibilities in Dispute Resolution." Return to text.

[8] The committee note to Florida Rule for Certified and Court Appointed Mediators 10.090 provides:

Mediators who are attorneys should note Florida Bar Committee on Professional Ethics, formal opinion 86-8 at 1239, which states that the lawyer-mediator should "explain the risks of proceeding without independent counsel and advise the parties to consult counsel during the course of the mediation and before signing any settlement agreement that he might prepare for them."
FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.090 committee note. Return to text.

[9] For a discussion of the benefits of med-arb, see Sherry Landry, Med-Arb: Mediation with a Bite and an Effective ADR Model, 63 DEF. COUNS. J. 263 (1996). Return to text.

[10] See Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85 (1981). Return to text.

[11] See Risette Posey, Latest MQAP Opinions, RESOL. REP., Oct. 1995, at 2 (Florida Mediator Qualifications Advisory Panel Op. 95-002); see also Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949, 963-64 (1997) (summarizing panel opinion). Return to text.