WHAT EXACTLY IS MEDIATION?
This question comes up often because parties in a civil lawsuit in Florida must mediate before they can go to trial, generally speaking. Mediation is really nothing more than the parties, that is plaintiff and defendant, getting together with their lawyers and a certified mediator, to put their proverbial cards on the table and see if there is another way to resolve their differences. Mediation is not anyone deciding who is right or who is wrong; the mediator isn’t there to judge and the whole event is confidential, with some limited exceptions.
HOW DOES IT WORK
So how does it work you ask? Usually one side suggests mediation if it is before the case has been noticed for trial. If it is noticed, then the Court mandates mediation within a certain time. The lawyers agree on a mediator, location, and a time and each lawyer has the chance to send a confidential mediation summary to the mediator to give him or her a bird’s eye view of the case as that side sees it. Unless told to do so, the mediator doesn’t share this summary with the other side.
At the mediation, the parties start together with the mediator, usually in a conference room. The mediator explains that the process is confidential, that he or she doesn’t decide the case, and listens to both sides as an objective, yet skilled observer trying to help the parties meet somewhere in the middle. Each side then presents their view of the dispute, ordinarily through their lawyers, but the parties themselves can speak and sometimes, depending on the case, it is helpful to get a few things off one’s chest. After that, the parties go to separate rooms with their attorneys and the mediator meets privately with them.
What the mediator does in speaking privately with each side is try to get that side to see different views of the dispute and to determine where their limits are for settlement. Different mediators have different styles and your lawyer tries to select or suggest the person that he or she feels is most appropriate for the dispute. Each side generally pays the mediator in equal shares at the end of the mediation, regardless of the outcome. Mediators bill by the hour and the parties agree to the rate before the mediation.
WHEN DO YOU MEDIATE
When then do you mediate? Simple answer – anytime you want and as many times as you want. Some disputes lend themselves to early mediations; some require more development of the evidence before any meaningful settlement is possible. The question of when to mediate is a decision to make with your attorney, but unless the Court lets you off the hook, whether to mediate is not normally an option. The reason why most Judges won’t waive mediation where none has ever occurred is because they know that even mediations that don’t result in a settlement can still set the groundwork for an amicable resolution later.
WHAT IS THE PURPOSE OF MEDIATION
The purpose of mediation is not just to generate a settlement, but to give the parties a chance to explore options that the Court can’t offer and to take control of the outcome of the dispute. Courts really just award money as damages or sometimes property, depending on the case. However, the parties might accept a swap of assets or really just want a non-compete or some other agreement that means more than money and that a Court can’t usually award on its own.
It is important to recognize that if parties don’t settle their lawsuits, judges or juries make the decisions for them. If the parties can construct a settlement through mediation that each can live with, they take control of the outcome.
While there are many factors to consider in any mediation, such as the cost of the lawsuit and the evidence, one thing mediation is not is a trial; the mediator doesn’t make any decision. That right always resides with each party at mediation.
ABOUT THE AUTHOR
Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens. He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida SuperLawyers for 2014.
Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee. In 2014, the Florida Supreme Court appointed him to its Committee for Standard Jury Instructions in business and contract cases. He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.
Mr. Steinfeld is a full Professor at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery. Informative videos and articles are available for free at http://www.davidsteinfeld.com.
Please visit http://www.davidsteinfeld.com