How Mandated Mediation Works — Even When It Doesn’t

One of many roads to success (photo by Marilyn Swanson)

By: Donald L. Swanson

The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.”

A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to success.  The case is Calvo v. Summit Broadband Inc., Case No. 2:16-cv-746.

Motion to Excuse Mediation

On February 8, 2019, when the Calvo v. Summit case had been on file for more than two and a half years (since October 3, 2016), the parties ask the Court for permission “to forgo mediation” (Doc. 111). Here are the reasons given for their joint request:

  1. The parties have been in informal settlement negotiations and wish to continue their informal efforts;
  2. Nearly a year ago (on May 24, 2018), the Court set a mediation deadline for January 17, 2019;
  3. The Parties have fully explored settlement, informally, and agree that mediation will not be fruitful; and
  4. Foregoing mediation will conserve time and litigation resources.

Motion Denied

On February 12, 2019, the Court denies their request (Doc. 112). Here’s why:

  • This Court’s mediation policy is mandatory.
  • A prior Order in this case set a mediation deadline of January 17, 2019, and the parties missed that deadline.
  • Local Rule 9.03 authorizes exemption from mediation “upon a determination for any reason that the case is not suitable for mediation.” But the exception does not apply here because, (i) the parties already skipped mediation, and (ii) they offer “no legitimate reason” for excusing mediation.
  • Conclusory statements like, the parties “fully explored settlement informally” and “mediation will not be fruitful” are insufficient to excuse a mandatory mediation.

The Court’s Order concludes with a new mediation deadline as follows:

“The parties are ORDERED to complete mediation by March 15, 2019.
DONE and ORDERED in Fort Myers, Florida this 12th day of February, 2019.”

Case Settles—A Victory for Mandated Mediation

Question: So . . . what happens next?

Answer: The parties settle their case.

Within six days after the Order (on February 18, 2019), the parties: (i) settle their case, and (ii) file their Stipulation and Motion (Doc. 113 & 114) for dismissal of Plaintiff’s claims with prejudice.

Did the parties actually mediate their disputes between the Court’s February 12 Order and the parties’ February 18 dismissal? Undoubtedly, the answer is, “No.” But the Court’s order requiring mediation is, also undoubtedly, the catalyst for getting this long-running lawsuit resolved.

And that is a victory, indeed, for the Court’s mandated mediation process.


There is always more than one road to success. Success for mandated mediation can be achieved through a mediation session. It can also be achieved through a session that does not occur—which is precisely what happened, very recently, in the Calvo v. Summit case.

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