What is the Florida Mediation Process?
If you have a dispute, you don’t necessarily have to pursue the lengthy trial process. Other options are available for the resolution of claims, including the mediation process.
Alternative Dispute Resolution (“ADR”) is a process in which a neutral third party – a mediator or arbitrator – assists parties with a dispute. The goal of ADR is to have the parties reach an agreement without court intervention. The two types of ADR are arbitration and mediation.
What is mediation?
Mediation is an out-of-court process that utilizes a neutral third-party to help parties reach a resolution of their claims.
This neutral third-party is called a “mediator.” Mediators are not necessarily attorneys. A mediator can be a business profession, educator, law student, counsel, and even someone else! To become a certified mediator, the individual must comply with the ethical, educational, and observational requirements of the Florida Supreme Court.
The most important aspect of a mediator’s job is that they do not provide legal advice. Unlike an arbitrator or judge, a mediator does not decide who is right or wrong; rather, a mediator assists the conflicting sides in exploring their interests in an effort to reach an out-of-court settlement.
The mediation process provides for individual attention by the mediator, who can separate the parties and better examine their claims. A mediator guides the party to a decision by clarifying areas of agreement.
Mediation results in voluntary decisions, which may be non-binding unless otherwise specified.
Is mediation required in Florida?
Mediation is required in every civil action in Florida. Moreover, since the COVID-19 pandemic, court-ordered mediation has become the norm in Florida for criminal matters as well.
As mediation is required, the parties must attend mediation once it is duly scheduled. Failure to appear will result in sanctions, including an award of mediator and attorneys’ fees and other costs against the party failing to appear.
A mediation conference is typically scheduled in advance in order to provide the parties with an opportunity to properly prepare.
What is the mediation process?
Mediation procedures are governed by Fla. R. Civ. P. 1.720. The process begins with an introduction by the mediator explaining the process and the role of the mediator.
The mediator’s introduction is followed by an opportunity for the parties to describe their dispute via pseudo-opening statement.
After these steps, the mediator usually will meet with both parties to discuss the issues and to help you work out your differences. The mediator may also meet with each party privately in a “caucus.” Unless the mediator is given permission to repeat what is said in a caucus, they are prohibited from sharing the discussions. During these meetings, parties may present evidence, visual aids, or other information to assist the mediator with understanding their perspective.
Mediation will proceed in this back-and-forth fashion until the parties reach an agreement, an impasse is declared, or mediation is adjourned to be resumed later.
Are there advantages to going to mediation over pursuing litigation?
Mediation is an effective means to get parties to overcome an impasse.
It is a mediator’s job to overcome the parties’ differences by offering to help both sides and facilitating communication. This places a mediator in a unique position to brainstorm resolution options that might not otherwise occur in a traditional court setting.
Mediation provides freedom. From choice of mediator to self-determination of outcome, mediations are a largely predictable mechanism that gives the parties full control of their dispute. Mediations also provide the opportunity for open communication because they are largely confidential.
Once a mediation agreement is issued, it is enforceable pursuant to traditional contract law principles. This agreement will not be confidential unless the parties agree so in writing.
When mediation is mandated, it can save costs on the litigation process by ending the dispute early simply through normal discussions between the parties.
Unlike a traditional trial, the parties at mediation may decide that a resolution is not possible. In those circumstances, the mediation would be declared an “impasse” and the parties would proceed through the usual litigation channels. At that point, the judge or jury will make the final decisions for the party.
|Advantages||Impartial third party facilitates communication Full control of outcome Always private Selection of mediator No cameras or public access No option for jury trial More predictable outcomes Cheaper||Costly Robust appeal process|
|Disadvantages||Lack of appeal process||No facilitation of communication May be public unless certain statutory requirements apply Cannot select judge Provides for cameras and public access Lengthy testimony May have jury trial No control of outcomes|
If I didn’t reach a resolution at mediation, was it worth my time?
Yes! Even when parties fail to reach a resolution, mediation is an opportunity to gain an insight into an opponent’s trial strategy, explanation of claims, and facts regarding why the dispute arose. This information can be used later to refine discovery and to strengthen applicable claims and defenses.
How do I proceed through the process?
If you are part of a civil suit, the decision to go to mediation has been decided for you. In the pre-litigation phase, the decision to go to mediation is largely based on the strengths and weaknesses of the claims in the matter and on the client’s goals in the matter. In both circumstances, mediation remains a quick and effective method to reach an amicable resolution to claims.
If you have been sued, thinking about mediation, or subject to a court-mandated mediation, reach out to us so that a licensed attorney may assess your matter and assist with your claim.