Recent changes to the Florida Rules of Civil Procedure, effective Jan. 1, 2025, may well be among the most sweeping and impactful ever implemented.
The recent revisions to the rules result in a drastic shift in the way civil cases are managed in the judicial system. Traditionally, cases in state court were attorney driven, meaning the cases moved through the system in large measure based on the actions or inaction of counsel of record.
Under the “new rules,” civil cases are managed by the court. New cases will be assigned to one of three tracks upon filing – complex, general or streamlined.
Courts are now required to issue a case management order in each case that specifies the projected trial period and at least eight specified deadlines, which “must be strictly enforced unless changed by court order.”
A detailed description of all of the new rules is beyond the scope of this article.
However, one change in particular could have an impact on mediation.
The rules now require initial disclosures similar to those in the Federal Rules of Civil Procedure.
Specifically, within 60 days of service of the complaint, without awaiting a discovery request, the parties must disclose the names of persons likely to have discoverable information, a copy or description of all documents that the disclosing party may use to support its claims or defenses, a computation for each category of damages claimed by the disclosing party and a copy of any insurance policy that may satisfy a possible judgment in the action.
Traditionally, the information that must now be disclosed within 60 days may not have been known for several months, if not years, from the time the lawsuit commenced.
Armed with such information, counsel and the parties will be in a far better position to mediate the case earlier because the information needed to make an educated settlement decision will be known.
Historically, it has not been unusual for a case that has been pending for six months, a year or more to make its way to mediation without any meaningful discovery having been conducted.
Cases in which very limited, or no discovery, has been conducted can be difficult to settle because the case still involves mere allegations without evidence to support such allegations.
Under the new rules, this will no longer occur since meaningful discovery will take place through the initial disclosure.
The initial disclosure requirements will undoubtedly result in an up-front increase in litigation cost. Parties are often more motivated to settle in mediation when they have experienced the expense of litigation.
When parties arrive at mediation with allegations absent any proof in support of such allegations, they are far more likely to stand on “principle,” thinking they know what the evidence will show versus having evidence to support their claims.
However, when the parties have experienced significant litigation expense, they are far more inclined to settle the case than if they are not financially invested.
They are also more knowledgeable regarding the strengths and weaknesses of their case after some discovery has been conducted, leading to better settlement decisions.
The initial disclosure requirements and associated expense may also make pre-suit mediation a more attractive alternative. Particularly in cases that are not factually complicated and don’t require extensive discovery, pre-suit mediation and the avoidance of what will now be significant expense at the onset of the case may lead parties to attempt resolve their disputes before filing suit to avoid the expense of litigation.
It would be advisable for counsel to evaluate the potential effectiveness of pre-suit mediation and discuss it with their clients as a viable option to resolve a dispute under the right set of circumstances.
John McCorvey is an AV Preeminent Peer Review rated attorney by Martindale-Hubbell who draws upon 34 years of experience as a trial lawyer and 16 years as a certified mediator.