How Mediation Works
Mediation is a popular form of alternative dispute resolution because of its many benefits. Two of those benefits are being cost-effective compared to going to trial and resulting in a resolution faster than waiting to go to trial.
What Is Mediation?
Mediation is an informal conversation between parties in the presence of a neutral third party who will assist in negotiating a mutually acceptable resolution. The purpose of mediation is to allow for non-confrontational confidential conversations so that each side will openly discuss their case. Mediation is a non-binding conversation. Any verbal agreement reached during mediation will not be binding on the parties until a mediation agreement is written and signed by all the parties.
To further encourage honesty, Florida law makes mediation confidential. Nothing said during the mediation by either party can be used in the lawsuit or future lawsuits. There are a few exceptions to this confidentiality rule. If any communication includes the following, it will not be considered confidential:
- Communication about the furtherance of a crime
- Communication concerning the concealment of criminal activity
- Communication about an attorney’s professional misconduct that occurred during mediation
- Communication concerning professional malpractice
Because of the structure of mediation, it can be a successful settlement process that emphasizes the following:
- The interests of the parties;
- Fairness for both parties;
- Procedural flexibility; and
- Full disclosure by the parties.
Who Will Be the Mediator?
In Florida, mediators must be certified by the Florida Supreme Court to ensure they are a neutral and impartial presence who guides the parties in coming to a mutually agreed upon resolution. During mediation, mediators can tell the parties their thoughts on the strengths and weaknesses of each side’s case, provide suggestions for resolutions, and tell the parties how much compensation they think is reasonable.
The mediator cannot provide independent legal advice unless they believe that a party does not fully understand or appreciate how the mediation agreement may affect them. Therefore, you should not go into mediation thinking that there will be another attorney on your side to give you legal advice. The mediator’s purpose is to guide the conversation, not to pick a side and force an agreement.
When Is Mediation Required in Florida?
In Florida, a court must refer any civil action filed for compensation to mediation if at least one party requests mediation. Additionally, mediation may be required in a contract or by statute. For example, in certain lease agreements or employment contracts, a mediation clause may require that a case goes to binding or non-binding mediation. Mediation is not required for all lawsuits, but if you believe mediation will help your case settle, it can be voluntarily entered into if both parties agree.
How Much Is Mediation and Who Pays?
The parties will share the cost of mediation equally, although an agreement can override that recommendation. This means that if both parties agree that one party will pay more or all the mediation cost, that is how the mediator will be paid.
Most Florida mediators charge $200 per hour and can charge for preparation time, as well. However, if you enter mediation voluntarily, you can enter an agreement with the mediator to pay a flat fee or a different hourly rate for the entire mediation process. Nothing is set in stone, and fees can typically be negotiated with the mediator unless mediation is court-ordered.
What Happens During Mediation?
Typically mediation will begin with introductions from the mediator and each party so that everyone knows who is who and their role in the lawsuit. Before mediation communications begin, the parties will sign a confidentiality agreement acknowledging that they are not allowed to use any information learned during the mediation against the other party unless it falls within one of the exceptions.
Once the parties sign the confidentiality agreements, each party’s attorney will make an opening statement that can include the introduction of relevant evidence. An opening statement can help the other side understand the opposing party’s position and what the jury will hear if the case goes to trial.
Once the opening statements are complete, the mediator may put the parties in separate rooms. The mediator will go between the rooms, taking suggestions and proposals between the parties. During mediation, the mediator will facilitate the session so that clarifying questions are asked and possible resolutions can be discussed.
If the parties agree to a settlement, the agreement will be prepared and signed by all parties. If the mediator determines that the parties need another session or are not going to come to a mutual agreement, they can end the session and either schedule an additional session or let the court know that the mediation was unsuccessful.
Contact The Bruner Law Firm
Having an experienced attorney on your side during mediation can make a difference in whether mediation is successful. The Fort Walton Beach personal injury attorneys of The Bruner Law Firm are ready to fight for your best interests through mediation, settlement negotiations, and trial if necessary. Contact us today at (850) 243-2222 or contact us online for a case evaluation and to learn more about your legal options.