Mediation: Then & Now
Mediation became widely used in Florida civil cases in 1988 after §44.102(b), Florida Statutes,[i] was adopted, allowing judges to refer cases to mediation.[ii] In 1987 the Florida Supreme Court adopted Rule 1.720, Fla. R. Jud. Admin. regarding mediation procedures. This rule provides sanctions if parties fail to appear at a “duly noticed” mediation conference. The rule provides that “appearance” requires physical presence of a party or its representative, the party’s counsel of record, if any, and an insurance company representative with full authority to settle. When this rule was adopted, all mediations were held in person, although sometimes insurance adjusters were allowed to appear via telephone. The rule did not anticipate the advent of virtual mediation.
Virtual Mediation Gains Acceptance
Virtual mediation (and court proceedings) became widely used during the COVID-19 pandemic. Mediators and parties quickly adapted to the new technology. They learned about the mute button, real and virtual backgrounds, filters,[iii] lighting, and the need to stay clothed at least to the waist while on camera.[iv] Because virtual mediation (and virtual court proceedings and arbitrations) reduced travel time and costs, many lawyers, judges, mediators, arbitrators (and parties) embraced this technological breakthrough. Some mediators preferred virtual proceedings to in person mediations. Many mediators stated virtual mediations were just as effective as in person conferences. Of course, there were some disadvantages to the new technology.
Mediating in the Dark
However, mediation participants soon learned about another feature on virtual platforms: the ability to turn off the camera and mute themselves. This left only a black box (or perhaps a headshot) where the participant was supposed to be. These participants were not present at mediation physically and from the mediator’s perspective, they weren’t present virtually either. Mediation is difficult enough when the parties are present and engaged. It’s nearly impossible when one or more participants is blacked out and muted. Mediation dies in darkness.
Civil Rules Committee Proposes Rule Amendment to Address Problem
This problem was pervasive enough that the Florida Bar Committee on Civil Procedure Rules proposed amending Rule 1.700, Fla. R. Civ. Proc. to require mediations using communications technology (such as Zoom) to have both audio and video.[v] The committee only wanted to require parties to be on camera during opening statements. In the author’s opinion, that isn’t enough. How can a mediator negotiate with a party who isn’t on camera and is muted?
Is it Really Mediation If a Party Isn’t on Camera?
At oral argument before the Florida Supreme Court, a committee member stated, “Nearly every single member of our committee has experienced this particular issue, and that is, while we’re attending the mediation, one of the participants turns off their camera and mutes themselves.”[vi] This prompted Justice Jorge LaBarga to respond, “You’re telling us that one of the parties involved in mediation just turns off the camera? Is he or she not mediating anymore?”[vii]
Will Proposed Amendment Solve the Problem?
The Florida Supreme Court has not ruled on the proposed amendment yet. But even if adopted, will this rule change solve the problem? How will mediators enforce it? Will parties seek sanctions for other parties “blacking out” screens during mediation? Virtual technology not only allows mediation participants to black out their screens and mute themselves, it also permits them to attend mediation while driving their cars or even while driving a golf cart.[viii] Is the problem really that some participants don’t take mediation seriously? If so, can rules alone change this attitude?
[i] §44.102(b) allows civil trial courts to refer all or part of any civil action to mediation. It is part of Chapter 44, titled “Mediation Alternatives to Judicial Action,” which includes court-ordered non-binding arbitration, voluntary binding arbitration and voluntary trial resolution, in addition to mediation.
[ii] History of ADR & Mediation in Florida, Office of State Court Administrator. https://www.flcourts.gov/Services/alternative-dispute-resolution/mediation/history-of-adr-mediation-in-florida
[iii] The “Zoom cat lawyer” became infamous because he was unable to remove a cat filter from his computer while appearing at a virtual court hearing, https://en.wikipedia.org/wiki/Zoom_Cat_Lawyer
[iv]Miami Herald (April 13, 2020; C. Isiah Smalls II), “Broward Judge Tells Lawyers to Get Out of Bed and Wear a Shirt for Zoom Hearings,” https://www.miamiherald.com/news/local/community/broward/article241976371.html
[v] If amended, Rule 1.700(a ) would read: “The judge may enter an order referring all or any part of a case to mediation or arbitration, unless prohibited by law. The parties to any case may agree to mediate or arbitrate any issue at any time. Except as provided in this rule, mediation and arbitration must be conducted in person. The judge may order, or the parties may stipulate, that the mediation or arbitration may be conducted through the use of communication technology. The communication technology must include both audio and video unless all parties stipulate or the judge finds cause.” (emphasis added).
[vi]Jim Ash, Fla. Bar News (Sept. 11, 2026) “Remote mediation rule draws concerns over cameras, connectivity,” quoting Melisa Bodner, https://www.floridabar.org/the-florida-bar-news/remote-mediation-rule-draws-concerns-over-cameras-connectivity/
[vii]Id.
[viii]The author has heard anecdotes about this; she has not experienced it herself in mediation.