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19 Fla. St. U. L. Rev. 47 (1991-1992)
Trashing, Bashing, and Hashing It Out: Is This the End of Good Mediation

handle is hein.journals/flsulr19 and id is 57 raw text is: TRASHING, BASHING, AND HASHING IT OUT: IS THIS THE END OF GOOD MEDIATION?* JAmEs J. ALFNIt* T HE subtitle to this Article was suggested by the remarks of Albie Davis' at a workshop on Alternative Dispute Resolution (ADR) in the Judicial Environment held in Tallahassee, Florida, in February, 1988. The workshop was sponsored by the National Institute of Dis- pute Resolution and the Florida Dispute Resolution Center. It brought together national experts and Florida ADR and justice system professionals to discuss both the ramifications of 1987 Florida legislation2 and subsequently promulgated supreme court rules., The legislation and rules gave Florida trial judges wide-ranging discretion to mandate mediation or arbitration for contested civil claims. React- ing in particular to a rule that would require mediators of nonfamily civil claims in circuit court to be either experienced lawyers or retired judges,4 Davis proclaimed this requirement the end of good media- tion.I * Although the author has attempted to maintain his objectivity in discussing and analyz- ing the developments reported in this Article, it must be noted at the outset that he was a partici- pant-observer for many of the events reported in Part I of this Article by virtue of his serving as Director of Education and Research of the Florida Dispute Resolution Center since its establish- ment in February of 1986. He also served as a member of both the initial Florida Supreme Court Mediation and Arbitration Rules Committee and the successor Standing Committee on Media- tion and Arbitration, and for one year as a member of the Florida Supreme Court Mediation/ Arbitration Training Committee. ** Professor of Law, Florida State University College of Law; A.B., 1965, Columbia Uni- versity; J.D., 1972, Northwestern University. The author gratefully acknowledges the assistance of Sharon Press and Jill DuMond in conducting the bulk of the interviews discussed and ana- lyzed in Part II of this Article and Doris Peoples for her careful transcriptions. He is also grate- ful to Mike Bridenback, Bob Moberly, and Sharon Press for offering helpful comments on earlier versions of this Article, and to various faculty members at the Colleges of Law of the University of Florida and Florida State University for helpful comments offered during presen- tations of this paper at faculty symposia at each law school. I. Ms. Davis is the Director of the Mediation Administration Office of the District Court of Massachusetts. 2. Ch. 87-173, §§ 1-7, 1987 Fla. Laws 1202-05 (codified at FLA. STAT. §§ 44.301-.306 (1987)). 3. FLA. R. Crv. P. 1.700-.830. These rules were adopted Dec. 31, 1987, and became effec- tive Jan. 1, 1988. Rules Civ. P. In re: Proposed Rules for Implementation of Fla. Stat. Sections 44.301-.306, 518 So. 2d 908, 909 (Fla. 1987). 4. FLA. R. Crv. P. 1.760(c). 5. A. Davis, Remarks at the Workshop on Mediation in the Judicial Environment (Feb. 25, 1988). For critical commentary on the workshop proceedings, see Lubet, Some Early Obser- vations on an Experiment with Mandatory Mediation, 4 OMO ST. J. DIsPUTE REsOLUTION 235 (1989).

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