Sanctionable v. Non-Sanctionable Misbehaviors in Mediation: Companion Cases from Eleventh Circuit

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Lots of ways to misbehave (photo by Marilyn Swanson)

By: Donald L Swanson

Parties and their attorneys can misbehave in mediation. It happens . . . not very often—but it does happen.

Sometimes, the misbehaviors can result in sanctions—but most times, they do not.

This article is about two companion opinions, issued by the same court (U.S. Eleventh Circuit Court of Appeals) and within a few months of each other. One denies sanctions for mediation misbehavior; the other awards attorney fees and interest as sanctions.

Comparing and contrasting these two opinions is useful in understanding the distinction between misbehaviors that will be sanctioned and those that won’t.

Sanctions Request is Denied

It’s an unpublished opinion by the Eleventh U.S. Circuit Court of Appeals in Ceus v. City of Tampa (Case No. 18-10484), issued February 3, 2020. Here’s what happened.

Patterson Ceus, a Tampa Fire Rescue firefighter, sues the City of Tampa in Federal Court for wrongful termination of his employment. Following discovery, the court dismisses Ceus’s claim on summary judgment. Ceus appeals.

The Eleventh Circuit orders the parties into mediation, under its local rules. Ceus and his counsel fail to attend two mediation sessions scheduled to occur by telephone.

So, the City requests an award of its attorney fees incurred in the mediation efforts. The Eleventh Circuit has discretion, under its local rules, to make such an award.

Ceus claims, in response, that his counsel (i) did not receive any notice of either mediation session, (ii) was on vacation during the first one, and (iii) during the second, was meeting with the wife of a client who had taken his own life the day before. Ceus and his counsel insist that they “did not engage in any intentional misconduct” or deliberately ignore the Court’s rules.

The Eleventh Circuit denies the sanctions request because:

  • the City did not specify the expenses it bore as a result of Ceus’s failure to attend the mediation sessions;
  • nor did the City include an affidavit for attorney’s fees or an itemized list of costs as required by local rules;
  • there is no evidence of bad faith; and
  • missing a teleconference (which does not require travel or other expenses) is not so great an offense.

Sanctions Request is Granted

The companion opinion is also by the Eleventh Circuit. It’s dated September 25, 2019, and is found at Ibezim v. Geo Group, Inc., 786 Fed.Appx. 975 (11th Cir. 2019).

The case is a fight over unpaid mediator fees: non-payment of a $700 mediator’s fee turns into a $7,000 judgment that includes interest and sanctions.

Here’s what happened. Michael Ibezim sues his former employer in Federal Court for discrimination. He loses. Before losing, the parties had agreed to mediate with a private mediator. The mediator charges each party a fee. The employer pays. Ibezim does not. After months of failed collection efforts, the mediator asks the court to enter judgment for the mediation fee, the mediator’s attorney fees, and interest. The court agrees and enters judgment, as requested, against both Ibezim and his attorney, jointly and severally.

Ibezim appeals to the Eleventh Circuit, challenging the attorney fees award. The Eleventh Circuit affirms. Here’s its rationale:

  • A litigant must typically pay its own attorney fees in federal court. But a court may award attorney fees as a sanction, under its inherent powers, when a party acts in bad faith. One way a party demonstrates bad faith is by delaying or disrupting the litigation or hampering enforcement of a court order.
  • When invoking its inherent power, the party or attorney must receive “fair notice” that its conduct may warrant sanctions and the reasons why, with a chance to respond and justify its actions.
  • Ibezim acted in bad faith: (i) he twice ignored the court’s order to pay the mediation fee and also ignored the court’s local rule thereon, (ii) the court twice warned him— in bold font and all caps—that he would face sanctions if he did not pay the court-ordered fee, (iii) in the lawsuit, his conduct created unnecessary and expensive action and wasted judicial resources, and (iv) his excuses rang hollow.
  • The hours and rates charged were reasonable.

Conclusion

Misbehavior that can be characterized as “bad faith” is sanctionable (see Ibezim v. Geo Group, Inc.). Misbehavior resulting from good faith errors that have limited impact on a case won’t be sanctioned (see Ceus v. City of Tampa).

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