Debt Collection Mediation Change
Attention Clients – Debt Collection Mediation Change
Largely due to the problems the Court has been having with mediations in foreclosure cases, the mediation rules in Florida have changed effective January 1, 2012. These changes, unfortunately will apply to all cases, not just foreclosures.
We wanted to take this opportunity to review the most significant changes with you and explain how those changes will effect the clients when engaging in the mediation process.
In order to be considered in attendance at the mediation, a person with full authority and the attorney must be present. While the requirements sounds like the same old status quo, the Supreme Court has changed the definition of a person with full authority. Now, the person must be “the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party.”
This is being interpreted to mean the person attending can no longer have parameters given to them for settlement by someone else. In theory, there can be no calling a supervisor for more authority. The person in attendance must have full authority: including taking payments over time, reducing the amount of debt, or even possibly agreeing to dismiss the action or pay opposing counsel’s attorney’s fees (if the facts warrant such a decision). Your representative must be able to listen to the facts presented to them at the mediation and make a business decision. They also have to be able to legally bind the company/party.
The other big change is that we must file a Certification with the Court and other parties, at least 10 days prior to the mediation with the name of the person appearing and certifying that the person appearing has full authority. The person named on that certification must be the person appearing. If someone else is substituted, the Court considers it the same as if no one appeared at all. That could result in sanctions including fees and costs.
The person appearing can still include persons appearing by phone, if permitted, however that person must have authority.
We would request that you provide us with the name of the person appearing (whether in person or telephonically, if the Court allows) at least fifteen days prior any scheduled mediation so the Certification can be timely made. If there is more than one person with full authority that attends mediations, please provide all names if you are uncertain as to whom will cover a particular mediation.
Please feel free to contact our office and discuss any particular concerns that this rule change presents so that we may come to a workable solution together.