MEDIATION: THE BASICS 1

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1 MEDIATION: THE BASICS 1 WHAT IS MEDIATION AND WHY IS IT USED Mediation, in lay terms, is an effort to resolve a disputed matter, or disputed issues, outside of the judicial or litigation setting. Almost, without exception, resolution by mediation will be (1) quicker, (2) much less expensive, and (3) the resolution will be memorialized in a written agreement. The mediation can also be used to resolve collateral or preliminary issues, settle counter or cross claims, eliminate Fabre issues, and remove non-issues from the case. Mediation can bring more certain finality to a case even better than a verdict. Absent a very unusual circumstance, mediations are final. There is no appeal, no rehearing s or motions for reconsideration. The time for tendering of the release (if one is required) and the payment of the draft or check can be placed in the mediation agreement. The statutory definition of mediation is: Mediation means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. Fla. Stat (2) It is usually informal, and a non-adversarial process. STATUTORY AUTHORITY FOR MEDIATON Mediation is authorized under Fla. Stat. Chap. 44. Court ordered mediation is authorized under Fla. Stat Standards and procedures for mediators are delegated to the Court under Fla. Stat A matter must be referred to mediation upon request of one party if the requesting party will pay the costs or the costs can be equally provided with certain exceptions. See listed exceptions, Fla. Stat (2)(a) (1. 8.). Courts may refer actions or parts of actions to mediation on their own motion. Fla. Stat (2)(b).. REFERRAL TO MEDIATION Most, if not all circuit judges, sitting in the civil division 2, are going to require that a matter before the Court be mediated. In fact the Uniform Order Setting Case for 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 1

2 Jury Trial; Pre-Trial Conference and Requiring Pre-Trial Matters to be Completed (UNIFORM ORDER) specifically states This case is hereby referred to mediation. The same UNIFORM ORDER requires that mediation be completed prior to the pretrial conference, and designates the plaintiff s counsel as the party to submit the mediation order. See, UNIFORM ORDER, 5 Referral to Mediation: Deadline. Upon request, or upon its own motion the Court will enter a specific order of mediation setting the date time and place of the mediation, designating the mediator, and setting certain procedures to be followed. The order entered in the Ninth Circuit is relatively standard and should be utilized when possible. Procedurally, mediation is controlled in part by Fla. R. Civ. P thru See also, Fla. R. Civ. P (j) Court-ordered mediation shall be conducted according to rules of practice and procedures adopted by the Supreme Court. Fla. Stat (1) A matter can be sent to mediation either via stipulation of the parties or by Order of the Court. Fla. R. Civ. P (a) The matter can be referred for attempted resolution of all or any part of a contested civil matter. Fla. R. Civ. P (a). While the rule provides that the mediation occur within 60 days of the referral (see, Fla. R. Civ. P (a)(1), in practice that rarely happens. (See, When to Mediate. Infra.) Further, pursuant the rules mediation is supposed to be completed within 45 days of the first mediation unless extended by order of the court or by stipulation of the parties. PROFESSIONALISM POINTER: Good attorneys will try to work together to agree on when the mediation should occur in relation to the discovery needed and in relation to the trial and pretrial dates. Further most counsel will be able to agree on a mediator acceptable to all parties. Professionalism demands both courtesy and cooperation and working together towards a mediation should be a simple task for attorneys acting in a civil and courteous manner. Motions to Dispense with Mediation: While the rules provide for the filing of a motion to Dispense with Mediation [Fla. R. Civ. P (b)] or to Defer Mediation [Fla. R. Civ. P (c)], in practice most trial judges will require a good faith mediation 3. Grounds set forth under the rule include (1) a previous mediation of the same issues, (2) the issue is one of law only, (3) mediation is prohibit by the rules, or (4) other good cause is shown. Note that any motion to dispense or defer mediation must be timely filed and heard, must set forth in detail the facts and circumstances supporting the motion, and must be heard. 2 Many judges sitting in the civil divisions in county court will also require mediation. See, Fla. R. Civ. P The procedures and requirements are different and the rule should be reviewed in detail. 3 See also the UNIFORM ORDER 5(c) 2

3 PRACTICE TIP # 1: While Fla. R. Civ. P (c) provides that [m]ediation shall be tolled until disposition of the motion to dispense or to defer shall occur, courts are not going to be very tolerant of delaying a mediation that has been set if there has not been an attempt to file a timely motion and have it heard prior to the scheduled mediation. MEDIATION WITHOUT REFERRAL Mediation can also occur without a referral by the Court. Agreements, contractual provisions, statutory requirements, or even specific elections to mediate disputes as opposed to filing a lawsuit can all result in a the mediation of a dispute. Some business and consumer contracts contain provisions that waive the parties right to a trial (jury or non-jury) and specifically elect arbitration or mediation as a way of resolving disputes. There is a large volume of case law that discusses when a wavier is effective and binding which should be consulted if this issues arises. For example, Fla. Stat (2)(a) contains a provision regarding a required mediation as a condition precedent to invoke attorneys fees in certain Assisted Care Facilities actions and Resident Rights issues. 4 Mandatory mediation is required by statute early in medical malpractice actions. Fla. Stat (1) In actions involving homeowners associations, the legislature has stated that from a public policy standpoint, alternative dispute resolution via either arbitration or mediation tolls the statute of limitation for bringing an action. Fla. Stat (1) [ The legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation. ] Even administrative actions such as consumer complaints handled by the Department of Consumer Services, when there is no agency involvement, are encouraged by statute to use formal or informal methods of mediation to seek a settlement. Fla. Stat (3) SELECTING THE MEDIATOR A mediator is supposed to be a neutral, disinterested party who can listen objectively and mediate the case. That does not mean the mediator is inexperienced. Mediators can be appointed by the court or selected by the parties. In Florida most courts will required that a mediator mediating a case under a court order be certified by The Florida Supreme Court. The mediator s role includes assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. Fla. Stat (2) 4 Mediations and arbitrations play statutory specific roles in many nursing home and medical malpractice actions. There is a vast body of case law which should be consulted specific to these causes of actions. See, also, Fla. Stat (11) regarding Nursing Homes and Related Health Care Facilities. 3

4 The names of mediators can be suggested by the Court, identified by reputation or referral from fellow lawyers, obtained from lists of mediators or from local and state Bar information directories. Whatever the source, the mediator selected should be acceptable to all parties and if the source of funds to resolve the matter is not a party, the non-party financial source also. Absent an agreement, a mediator will be appointed by the Court who may or may not be acceptable to all parties. PRACTICE TIP #2: Mediators, like attorneys and judges, have different areas of expertise and training. They also have varying backgrounds and personalities. And to some degree, mediators will have different styles and methods. Selecting the correct mediator for a particular case is critical. If the case is a medical malpractice case, some significant prior experience in that area of the law is strongly advised. If the case involves a construction defect, a construction or architectural background will assist in leading to a resolution of the matter. The mediator should be selected with a view towards her/his experience, their ability to work with these particular clients and the attorneys past experience with that mediator. Always keep in mind that a failure to agree on a specific mediator will mean that both parties will lose total control of the ability to have any input on who is selected as the Court will make the designation. PRACTICE TIP #3: Mediators who have a specific expertise and/or who are very effective by reputation can also be very difficult to schedule for mediation. Their calendars fill fast and a last minute call will usually find them unavailable. It is recommended that early on in the case the parties attempt to locate a mutually agreeable mediator and calendar the mediation even though it may be 6, 8 or even 12 months out. Judicial immunity is afforded to mediators under Fla. Stat assuming proper training and certification of the mediator. Such immunity does not apply if a mediator acts in bad faith, with malicious purpose, or in any manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla. Stat (2) By statute the chief judge in each circuit must maintain a list of mediators who are certified and are registered for appointment within the Circuit. Fla. Stat (4). Costs: Cost can also be a factor in selecting a mediator. The cost should be discussed with your clients and with opposing counsel. Generally the costs will be divided equally amongst the parties and will be required to be timely paid. Note that under the Statewide Uniform Guidelines For Taxation of Costs In Civil Actions mediation fees and expenses may be taxed as a category II cost item. WHEN TO MEDIATE YOUR CASE 4

5 The question when is the best time to mediate my case is not an easy or clear one. Much depends on the case, the parties, and the attorneys and, to some degree, the judge. On one hand, the earlier the case is mediated, the earlier it can be resolved and the more the recovery can be maximized and/or the expenses reduced. Conversely, until some basic discovery has been conducted and it has been shown that a viable case exists and that the plaintiff could get to a jury or a judge, chances of resolution are generally not good. A lot will depend on the type of the case and the attorneys involved. Many times if expert testimony is necessary, until the opinions are rendered in deposition, the opposing party will not be interested in trying to resolve the case. Sometimes a pending summary judgment will have to be ruled upon before a successful mediation can occur. Multiple mediations may be necessary to resolve a case. Occasionally an initial mediation may be necessary to allow the parties/attorneys to posture and to identify the outstanding issues. It may become clear that until the judge rules as a matter of law on a specific subject, resolution will be impossible. The mediator can be of great assistance in identifying (1) if second mediation might be necessary to allow the parties to cool off or to consult with non-parties [carriers not present (2) if a legal ruling is necessary to break a log jam, and/or (3) additional discovery is necessary to answer some questions that remain in limbo. Note that the events that start or commence mediation and conclude or end mediation are controlled and defined by statute. See, Fla. Stat WHAT TO MEDIATE Resolution of the entire case is the desired result. Unfortunately, many times when the case is not fully resolved, the mediation is declared an impasse, and the attorneys proceed to final trial preparation. From the judicial standpoint, mediation offers a host of opportunities to simplify, shorten, focus, and expedite trials that are not being utilized. Parties always focus on settling the entire case, which when possible, is certainly the best result. But if a case can not be settled in full, the parties should explore what can be accomplished short of total resolution of the matter. If it is an auto accident case, can sub-issues be resolved. Can stipulations be reached that will allow negligence to be admitted and the case tried only on legal cause and damages? Will the parties stipulate as to liability so the case can be tried only on damages caused by the accident? Can the Fabre defense issues, comparative negligence issues, failure to mitigate and failure to use seat belt issues be resolved? In a medical negligence case can the parties stipulate to vicarious liability of the P.A.s? Can the parties agree as to the cause of death and reduce it to a stipulation? Can 5

6 the parties agree to the elements of damages if deviation from the prevailing professional standard of care and causation are demonstrated at trial? Failing resolutions of the entire case, can alternative partial resolutions be reached? A high/low agreement? A determination as to how set off of other settlements or collateral sources will be handled. Can cross claims and maybe even counterclaims be resolved? CONFIDENTIALITY UNDER Fla. Stat. 119 (Public Records) All written communications in a mediation proceeding are exempt from the requirements of Chapter 119. The only exception would be any resulting executed settlement agreement. MEDIATION CONFIDENTIALITY AND PRIVILEGE ACT The Mediation Confidentiality and Privilege Act was enacted in Fla. Stat Some statutory definitions are important: Mediation communication means any oral, written, or non-verbal conduct that is intended to make an assertion. Mediation participant is a party or person who attends a mediation in person or electronically. Mediation party is (a) named party, (b) real party in interest, or (c) would be a party if brought in court of law. Mediator means neutral, impartial third person who facilitates the mediation process. [A]ll mediation communications shall be confidential except where provided otherwise. Fla. Stat (1) 1- A mediation participant shall not disclose a mediation communication to a person other than a mediation participant or counsel therefore. 2- A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications. [Emphasis supplied] Fla. Stat (2) Certain exceptions apply including, but not limited to when confidentiality is waived, the communication involves a crime or attempted criminal conduct, defending professional malpractice, to void a settlement agreement, etc. Fla. Stat (4) Remedies for violation of confidentiality provisions Fla. Stat : 6

7 If person knowingly and willfully discloses a mediation communication the disclosing party can be sanctioned via: 1- Equitable relief 2- Compensatory Damages 3- Be assessed attorneys fees, mediator fees and costs 4- Be assessed fees and costs for bringing request for these remedies Caution: there is a limitation period 2 years after date on which the party had a reasonable opportunity to discover the breach but no later than 4 years after the breach. PREPARATION FOR MEDIATION Preparation for mediation broaches at least two and possible three different areas. First, it involves the preparation by the attorney and his client for the upcoming mediation. Secondarily, it involves providing the necessary information to allow the mediator to prepare for the upcoming mediation. Lastly, and maybe as a part of the first issue, is the preparation of opposing counsel by providing to them, in advance of the mediation, with items and information that will be necessary for them to develop a complete understanding of both the case and why your client will most likely prevail as well as the damages, if applicable, that the opposing party may have to pay. Preparation by the plaintiff involves providing information that will convince, or help convince, opposing counsel, and their client and if applicable their carrier, that this will be a viable claim that will survive a summary judgment and the case will be presented to the trier of fact. If the defendant believes this matter will never make it to a jury and may well be dismissed on summary judgment or by directed verdict, a mediation will be doomed from the onset. If expert testimony is required, having the expert deposed before mediation is extremely helpful. If not deposed, voluntarily provide an affidavit from the expert with the critical and necessary language is extremely helpful. If experts are not necessary, have record proof of the basic facts to that will convince the defense that the plaintiff will get past a summary judgment or directed verdict. Know your client: You must know and understand your client. If your client is somewhat hard to control, difficult to convince or his/her expectation are unrealistic share that information with the mediator early on in the mediation or before. Know whether your client will actually let you go to trial in this matter. If the client will never let the case be tried your goals at mediation are substantially different than if trial is an option. Know what the bottom line of any offer will net to the client: Make sure you and your client have a firm (but not too firm) understanding of the bottom line the amount that your client will accept to resolve this case. The number 7

8 should be the actual bottom line the amount the client will put in their pocket after costs, attorney s fees, lien satisfactions, and any other deductions. PRACTICE TIP: #4: Time and again the Court is faced with Motions to Enforce Settlements many of which were reached at mediation. The common denominator seems to be a misunderstanding of what the client will net out of the recovery after deductions. The Rules Regulating the Florida Bar require in any contingency fee case that a closing statement be prepared at the conclusion of the case and be signed by both the client and attorney. The Rules Regulating The Florida Bar 4-1.5(f)(5) While the formal closing statement will usually not be prepared until a settlement has been reached, and the check and release is received, it is recommended that counsel bring with them a draft closing statement so it can be discussed with the client.. Ideally having the client sign off on a draft closing statement will save the attorney a lot of headaches and maybe grievances from being filed with the Bar. In these days of Excel spreadsheets an attorney ought to be able to provide the client a relatively accurate representation of what any offer means to them personally. Know what the cost of proceeding forward will be to your client: With any mediation, and especially early mediations, the cost savings to all sides can be very significant. Increased discovery costs, trial preparation, hours billed by the attorneys and experts, court reporter costs and demonstrative aids for trial can push the costs of litigation so high that bulk of a larger recovery later on in the case is absorbed by the enormous increase in the costs of proceeding past mediation. Know any non-party decision maker whose income will be necessary: Some non-parties must be at mediation, i.e., the insurance carrier in an injury or damage case. Other times a non-party may be a decision maker without whose input the client will not make a decision. Decide if this non-party should be present, available by telephone, or should be ignored. This non-party may be a spouse who does not have a claim, a parent of an adult, a close friend or confidant, or even personal counsel who wants to remain in the background. Know your case and know it well: The attorney most familiar with the case must be present at the mediation. She/he must know all the facts, the legal theories, the defenses, and the damages. The attorney must know what facts are admitted and not in dispute. He/she must know what issues are in dispute but really are not material. And lastly what facts are in dispute and how different resolution will affect the resolution of this case. For example, if the case was an auto accident, and the client may not have been wearing a seat belt, but the injury was not seatbelt controlled, the use of the seatbelt may be disputed fact, but is irrelevant to the injuries sustained. 8

9 The attorney must also have a full understanding of not only the legal issues outstanding, but also when and if these matters are set to be resolved by the court as a matter of law. For example, if an issue of duty exists and there is pending a Motion For Summary Judgment on that issue which is set to be heard a week after the mediation, this outstanding issue can be used by either side. It would be helpful to have copies of controlling case law with you at the mediation to support your position if you will be arguing for or against the MSJ. Further, the mediator must know of this pending motion and when it is set to be heard. Provide key information to opposing counsel well before the mediation: Blind siding opposing counsel, and sometimes the mediator, during the initial conference at the mediation leads to predictable results. Little if anything will be accomplished. Enough information must be provided to opposing counsel before the mediation ever occurs. Opposing counsel ought to have some idea of potential range that will have to be reached to resolve a case. The theories of liability should have been disclosed, responses to anticipated defenses should have been at least tendered, and a showing that if not settled, this case will be presented to the fact finder must be demonstrated. If medical bills are going to be offered, provide them to opposing counsel before the mediation. The same tendering of lost earnings or lost earning ability calculations and lost profits will improve the potential for a successful mediation. If liability is based, in whole or in part, on violations of statutes, regulations, ordinances, codes, written procedures, policies or other written documents, providing copies to opposing counsel in advance can be helpful. While plaintiff may possibly present these materials during the actual mediation presentation, advanced copies allows the attorney, and adjuster if appropriate, to study and review the materials. If you have developed a succinct and convincing written pre-mediation statement to provide to the mediator in advance of mediation, consider providing a copy to opposing counsel. It will probably be copied and forwarded to the adjuster (in an insurance case) and/or the individual defendant and will simplly be an additional opportunity to argue your position unopposed. PRACTICE TIP # 5: In cases involving insurance coverage, many times the adjuster or supervisors will committee the case to establish what authority they wish to bring with them to the mediation. Enough information has to be supplied to allow the carrier to set its reserves and develop a recommendation that is sufficient enough and supported by the documents to justify them having enough authority to settle the case at mediation. Providing this data and information well before the mediation will allow sufficient reserves to be established. 9

10 THE MEDIATION ITSELF The process of the mediation is controlled by the individual mediator who is conducting the mediation in the case. While there may be some variation, the pattern is relatively consistent. It is critical that the parties mediating a case understand, in advance, how their chosen mediator will conduct the mediation. Further, one must know what information will be helpful to the mediator so it can be supplied sufficiently in advance of the day of the mediation to be useful to the mediator. Generally, there will be an initial meeting of all parties, attorneys and interested individuals at which time the initial presentations for all sides will be argued. The presentation should be brief but focused on the important issues and, of course, be persuasive. The initial meeting many times sets the tone of the mediation. Taking intransient positions initially is generally counter productive as the overall goal is to reach an agreement. The focus should be multifold. It should demonstrate the righteousness of the plaintiff s clam. The ease with which it will be proven should be shown. And of course the exposure the defendant will have if they do not resolve it at this mediation. It may also be appropriate to address prophylactic ally any affirmative defenses raised. PRACTICE TIP # 6: Surprisingly, most presentations do not effectively sell what is being saved by resolving this case now as opposed to closer to trial or at trial. The dollar value savings (or discount) from an early resolution can be a strong selling point for all parties and should be strongly addressed. In this era of limited court funding, trials can be scheduled a year or more out from the Notice for Trial being filed. Even as that long awaited trial approaches, there is always a chance of the trial being bumped or continued because of the ever increasing limited trial dockets available. Some attorneys find use of Power Point presentations, Day in a Life films, summary charts, diagrams, timelines and other demonstrative aids are effective in making their presentation. The use of these items can be helpful and illustrative of issues, but should not become the focus of the mediation. Following the general session, the mediator will usually separate the parties into breakout groups. Each group will generally be divided based upon their interests in the litigation. Depending on the circumstances, multiple defendants may be separated or combined in the breakout groups or both. Depending on the mediator s preference, the breakout groups may be realigned, depending on their ongoing positions. At the conclusion of the mediation, if successful, the mediator may reconvene all the parties into one group to draft the mediation agreement. Alternatively, she/he may simply move back and forth between the groups with the draft agreement attempting to finalize the document. 10

11 At some point the mediator will determine (1) that a settlement has been reached, (2) that a settlement has NOT been reached but the matter could be settled with further efforts and adjourn the mediation, or (3) that a settlement has not been, and most likely CAN NOT be, reached and declare an impasse. It is imperative that the attorneys know if an adjournment has been declared or in some cases, an impasse, if the mediator will stay involved or will be available for any follow up efforts to resolve this matter. Many cases are settled because of the mediation but not until sometime after the actual mediation. In some situations a mediator may determine that a mediation has to be adjourned to allow for either a legal or factual issue to be resolved or clarified. The matter may require the Court to rule on an outstanding Motion for Summary Judgment or for a deposition of a critical witness to be taken. The mediator may sense that case s resolution may hinge on this issue, and that resolution of this issue may open the door for a successful mediation. The matter would then be reconvened to conclude the mediation after the issue has been resolved. Let the mediator be your guide; most of the time you were involved in the selection of the mediator. You choose that person because of their experience and the trust you had in them. Utilize that trust. Rely on your mediator for suggestions as to the best way to proceed. Remember she or he is the one person at the mediation that (1) has not interest in who gets what or in (2) getting paid as they will get paid in any event even if it does not settle. The mediator has what you do not have perspective. They can step back from both sides and look at it somewhat objectively shaded slightly by the multitude of mediations that have conducted. PRACTICE TIP #7: Even if unsuccessful, the mediator may be able to identify the log jam issue or issues that are preventing a case from settling. Attempt to learn what these issues are and why they have created an obstacle. This information can be extremely helpful in the continuing efforts to try and resolve this matter after the mediation has ended. WHEN IS AN IMPASSE NOT AN IMPASSE The fact that a case is declared at impasse at the conclusion of mediation does not necessary mean that the mediation was not successful. The Court sees many cases that are resolved prior to trial were an impasse was declared, but in fact the resolution directly resulted from the mediation. Some mediators, if they suspect resolution is still possible and if they will continue to work on the case, will adjourn the mediation instead of declaring an impasse. Despite the terminology used, the attorney must know if the mediator is going to continue to work to resolve the case after the parties leave the mediation venue. Even if the mediator is not going to stay involved, efforts to settle the matter should not be abandoned. Many times the seed of settlement is sowed at the mediation but does not take root until the parties leave and continue to grow as the parties move closer to trial. 11

12 OFFERS OF SETTLEMENT & OFFERS/DEMANDS FOR JUDGMENT When an action is referred to mediation by court order, the time periods for responding to offers of settlements under Fla. Stat and/or offers/demands for judgment under Fla. Stat shall be tolled until : 1. An impasse has been declared by the mediator; or 2. the mediator has reported to the court that no agreement was reached. See, Fla. Stat (5)(a) However, offers of settlements under Fla. Stat and/or offers/demands for judgment under Fla. Stat can be made any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. Fla. Stat (5)(b) WHAT ABOUT UNETHICAL/UNPROFESSIONAL BEHAVIOR If and when professional misconduct occurs at mediation, and the conduct is not isolated or an aberration of this attorney s normal behavior, the poor conduct should be addressed. If it rises to the level of an ethical violation, consideration should be given to filing a complaint with The Florida Bar. Note that while confidentiality applies under Fla. Stat (1), an exception does apply to report, prove or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct. Fla. Stat (4)(a)6. PRACTICE TIP #8: If you are contemplating filing a complaint with the Bar, assuming it is ethically permitted, you may wish to notify the mediator that you are doing so as the Bar will inevitably contact her/him. PROFESSIONALISM POINTER: The honesty of counsel is always a key point of the profession. Professionalism enters the mediation conference with each attorney with the expectation that it will be employed and followed throughout the mediation process. The confidentiality provisions of the Florida Statutes do not shield the attorneys from acting professionally. In fact, the mediation process is founded upon the expectation that all those participating, especially the attorneys, will act with the upmost civility and courtesy and honesty toward other counsel. Anything less must not be tolerated by the participating attorneys and the mediator. Revised John Marshall Kest October Comments, recommendations, practice tips and professionalism pointers are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. In addition, each person mediating a case should confirm with the mediator his or her preferred procedures. 12

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