“’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. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” Fla. Stat. §44.1011(2).
Yes. Mediation is so effective that most state and federal courts in Florida require parties involved in civil litigation to meet with a neutral mediator for the express purpose of helping them achieve a resolution. Since the court system frequently has so many cases, mediation helps reduce backlogs, and helps litigants avoid costly attorneys’ fees and costs.
Mediation is successful for many reasons. Many people think that having an objective third-party (the mediator) who does not have a stake in the outcome, enables the parties to communicate more effectively than would otherwise be possible. In that way, mediation can help bring two sides together to a point of compromise, where each party has a say in the resolution and can live with the final result.
No. Mediation can be used to resolve virtually any kind of personal or business dispute. Mediation is particularly effective when parties are locked into their positions and need someone to help break a stalemate.
Mediation has with no set format. Usually, however, the mediation begins with all the parties meeting with the mediator to discuss their respective positions involving a dispute. During this opening session, the mediator explains the mediation process and encourages the parties to make presentations and explain their position.
The parties typically meet all together until the Mediator determines it is best for the parties to break into separate caucus sessions, in different rooms. At that point, the mediator meets separately with each party, evaluating their positions and—without taking sides—encourages each party to evaluate the strengths and weakness of their claims, along with costs and benefits of continued litigation. The goal is to help the parties find common ground so they can fashion a resolution they can live with.
Yes. By law, subject to a few exceptions, all communications that take place at mediation are confidential and privileged. Fla. Stat. §44.105(1). This means that what is said at mediation, stays at mediation. Confidentiality is an extremely important part of mediation because it encourages parties to be realistic and talk openly about their positions, without fear that it will be repeated when the mediation is over. The Florida Statutes include specific provisions on what happens if someone violates that confidentiality. Fla. Stat. §44.406. Importantly, when the parties are separated into separate rooms, a party can ask the mediator to keep certain information confidential, and not share it with the party or parties participating in the mediation.
No. While parties to a mediation should attend a mediation in good faith with a desire to try and resolve a case, however, there is no requirement that a settlement be reached. In fact, the mediator cannot force anyone to settle a case that they do not wish to resolve. Instead, the mediator acts as a facilitator in helping to bridge the differences between the parties—getting them to see other points of view and be evaluate the pros and cons of reaching a consensus.
In order to give mediation the best chance at success, a mediator may request that the parties to a dispute provide the mediator with a written summary of their respective positions, a few days prior to the mediation being conducted. In that way, the mediator is “up to speed” on where the parties are coming from prior to the day of mediation hearing. Frequently, it is helpful for a party to provide the mediator with some background regarding the dispute, each party’s position, a summary regarding prior settlement negotiations, and the strengths and weaknesses of the case.