Mediating with Florida’s Local Governments: Tips for the Private Practitioner
This article is designed to alert members of the private bar to the nuances and subtleties of mediating with Florida’s local government entities. During my tenure as a local government attorney, I witnessed the frustrations experienced by members of the private bar unfamiliar with the peculiarities of mediating with local government. My local government colleagues and I operated under the mistaken presupposition that most, if not all, attorneys were aware of the fact that the preponderance of all claim settlements reached at mediation were tentative at best and were subject to scrutiny and a vote by a body politic prior to formal approval.
The scenario is far too common. You are a private practitioner involved in a grueling day-long mediation with a local government attorney. Negotiations have vacillated between acrimony and outright warfare. Your client, a personal injury plaintiff, is eager to settle his claim and get on with his life. Finally, just when it seems utterly hopeless, you reach an agreement that is acceptable to your client, provided he can be assured payment by the close of business the following day. You quickly draft a settlement agreement and offer it to the government’s attorney. She takes one look at it and informs you that not only does she lack the authority to settle the claim, but also the county representative who accompanied her lacks settlement authority. Further, she cautions that the agreement must be presented to the elected board (who, incidentally, have voted not to meet this month), and, provided they follow their counsel’s recommendation (no guarantees, mind you), then a deal can be had. Of course, the clerk of the circuit court will have to be informed of the board’s decision, prior to issuing a check. Consequently, if all goes according to plan, the government may be in a position to tender a check in about six weeks.
When presented with the mechanics of settlement, your client throws up his hands in despair and asks you why you wasted all of his time and money meeting with people who not only lacked the authority to settle, but also could not guarantee payment after settlement is reached. You just learned the hard way that the State of Florida and its political subdivisions play by a different set of rules than do private sector tortfeasors when it comes to claims negotiations and settlement. This article is designed to alert you, the private practitioner, to the nuances, pitfalls, and subtleties of mediating with Florida’s local government entities.
Prior to the promulgation of 1981 Fla. Laws ch. 317, the settlement of tort claims was a major source of woe for public sector attorneys.1 Florida law, via the Government in the Sunshine Act, placed a panoply of restrictions on public officials and their employees in terms of their ability to discuss pending claims freely. These restrictions required the hapless public sector attorney, desirous of settling a claim in the best interests of his or her client, essentially to sell opposing counsel’s case to the elected board during the course of a public meeting. This often was accomplished by pointing out the weaknesses in the government’s case. Not only were such discussions monitored by the local press, but opposing counsel often availed themselves of such meetings for obvious reasons.
The advent of F.S. §768.28(14)(c) has done much to prevent scenarios like the one described above. It reads in pertinent part:
The procedures, and the minutes thereof, of any risk management program administered by the state, its agencies and political subdivisions, which relate solely to the evaluations of claims filed with such a risk management program or which relate solely to offers of compromise of claims filed with such a risk management program shall not be subject to inspection under the provisions of s. 119.07(1)2 nor shall such proceedings be open to the public under the provisions of s. 286.011.3
Essentially, §768.28(14)(c) affords local government attorneys the opportunity to meet with their elected board to discuss the settlement of tort claims openly, in nonpublic “risk assessment meetings,” colloquially known as “shade” meetings. This invaluable asset benefits both parties for a myriad of reasons. For instance, during the course of such meetings, the attorney can discuss the strengths and weaknesses of the case freely without fear of compromise or alerting the other side to defense strategies. Further, meetings of this ilk can be called and convened any time a quorum exists, eliminating the necessity of briefing each official individually. Finally, elected officials faced with a politically sensitive claim will be more receptive to settlement and feel less pressured than they would had negotiations taken place during public meetings frequented by the press and constituents. The end result for you and your client is a greater possibility of settlement, valuable time saved, and client satisfaction.
One should carefully read the rules governing mediation when dealing with a public entity. Fla. R. Civ. P. 1.720(b) is telling in that it does not burden the public entity with bringing to the bargaining table a person or persons with full authority to negotiate a settlement. The rule merely requires that the entity bring to the table someone with authority to recommend settlement to the appropriate decision-making body. Being cognizant of Rule 1.720(b) may protect you from experiencing a scenario akin to the one presented at the beginning of this article.
Despite the promulgation of §768.28(14)(c), the public tortfeasor claims settlement process is wrought with restrictions that often frustrate the government attorneys’ ability to negotiate and settle claims. The fact that certain safeguards, if you will, exist to protect public coffers is little comfort to plaintiff’s attorney, who has to contend with the peculiarities of working with government. The first factor peculiar to government concerns the existence of multiple decisionmakers. Unlike insurance companies who rely upon claims adjusters to negotiate settlement, governments rely upon multiple representatives responsible for reviewing claims, attending mediation sessions, and making recommendation to the body politic. Consequently, it can be argued that the claim is not truly “mediated” at the mediation conference. I make this assertion based upon the fact that any recommended offer/settlement can be rejected outright by the body politic. Conversely, an impasse could be undone if the body politic is willing to accept plaintiff’s offer in spite of the representative’s recommendation. The group dynamics involved in coming to a settlement agreement are similar to jury deliberations in many ways. During the course of a given shade meeting, city council members or county commissioners will hear from their attorney or mediation representative, who will act much like a jury foreperson. The claim will then be discussed, a vote taken, and a decision made.
As you might imagine, the shade meeting process is not a panacea for the government’s attorney. He or she is prohibited from polling a group of county commissioners or city council members. Each elected official must be briefed individually, an often time-consuming and catch-as-catch-can system that prohibits the attorney from discussing the leanings of one public official with another. As such, the often hapless attorney will enter a shade meeting with what he or she believes to be the position of each official, only to learn that attitudes quickly change in a group setting.
Know Your Representative
It is imperative that you determine, prior to mediation, the identity, mediation experience, and, most importantly, the settlement authority of the government representative accompanying the government’s attorney. Further, you should inquire when the representative anticipates making a recommendation to the elected politic once an agreement is reached at the negotiation table. It also is wise to identify any hidden players who may possess the ability, directly or indirectly, to influence negotiations and settlement. Individuals such as fiscal/budget officers, risk/claims managers, and clerks of court are usually the most vocal and influential interested parties. Do not hesitate to consult with other members of the local bar experienced in mediating with local government. Your colleagues are your best source for determining the average turnaround time for settlement check issuance, as well as the identity of any “problem” players, and the identity of mediators who have experience in mediating actions involving local governments.
On a final note, take the time to educate yourself as to the entity’s insurance posture, i.e., is the entity self-insured? Do they maintain liability policies? Do they maintain excess or umbrella policies? Such subtleties are important as elected officials seem to be far less squeamish about spending an insurance company’s money than they are the general citizenry’s, even if expenditures translate into higher annual insurance premiums.
Once you have identified the local government players and are satisfied that the government’s representative will possess the requisite settlement authority, you will be in a position to brief your client accordingly. In doing so, you will dispel any notion the client may have regarding immediate payment should the claim settle. Prior to beginning negotiations, ensure that you have not been subjected to a last-minute replacement in terms of the government’s representative. Often, elected officials want to back out at the last minute to attend to more “pressing” matters. Invariably, their replacement will be a middle manager who has no settlement authority or any knowledge of the claim whatsoever. It is recommended that you learn in advance whether it is the practice of the entity with whom you are dealing to ensure the appointment of an alternate official and whether both officials are briefed accordingly. If time permits, you may want to attend a public meeting of the governmental body in question in an effort to observe the official with whom you will be doing business. Often, the manner of conduct during public meetings could be an indicator of what lies in store in the days ahead.
It is usually a safe bet to surmise that the local government attorney has the authority to settle up to a specific (prearranged) dollar amount that will not be challenged by his or her representative. This assertion especially holds true when mediating politically sensitive or celebrated claims. One final point on politicos. Like it or not, elected public officials are often quickly transformed into paragons of fiscal conservatism once election time rolls around. Your client would be best served if you can avoid, whenever possible, scheduling mediation conferences during annual public budget hearings and election months.
Regardless if you provided the mediator with a written brief in advance. availing yourself of the opportunity to present a brief opening statement, you will be in a position to educate the government representative on the strengths of your case. This is especially helpful in the event the local government attorney restricted his briefing of his client to the bare facts, or in those instances where a briefing was not undertaken, or a last-minute replacement appears.
A Word About
It is important to determine whether the particular public entity with whom you are dealing is self-insured, as compared to those that rely upon commercial liability insurance policies. Further, you will want to know if claims are processed in-house, or if such duties are contracted out to a third party administrator. Third party administrators at times assume a posture much like elected officials when it comes to settling claims with other people’s money. Protracted negotiations over claims translate into lost profits for third party administrators. Of course, there are exceptions to every rule, so do not be surprised when you run up against officials, elected or on the payroll, that will fight you tooth and nail for every cent.
Mediating with Florida’s local governments does not have to be a mysterious or frustrating experience, so long as you take the time to learn as much as you can about the government representative who will accompany opposing counsel to the negotiation table. ensuring that 1) the representative in question has the authority to settle; and 2) your client understands that any possible payment promised will not be tendered in haste, you are well on your way to a relatively hassle-free mediation session. As in most legal endeavors, the time you exert preparing and asking the right questions up front will greatly assist you in achieving the desired ends. q
1 1981 Fla. Laws ch. 317, codified as Fla. Stat. §768.28(14)(c), served to enable political subdivisions of the State of Florida to hold risk assessment meetings in private, thereby affording local government attorneys the opportunity to openly discuss pending claims with the elected officials they represent.
2 Fla. Stat. §119.07(1) (1993) provides in pertinent part, “Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or his designee.”
3 Fla. Stat. §286.011(1) (1993) provides, “All meetings of any board or commission of any state agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.”
Joseph G. Jarret is a partner in the Lakeland law firm of Hardin & Jarret, P.A. where he concentrates in the areas of commercial and civil litigation. A former assistant Manatee County attorney, and past president of the Manatee County Bar Association, he holds a B.S. from Troy State, a masters in public administration from Central Michigan University, a J.D. from Stetson, and a post-graduate certificate in public management from the University of South Florida.
This column is submitted on behalf of the Trial Lawyers Section, Richard A. Gilbert, chair, and D. Keith Wickenden, editor.