What is the legal definition of Mediation?

“ ‘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, decisionmaking 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).

In plain English, what is Mediation?

Put most succinctly, Mediation is a very effective way to resolve disputes very efficiently. The parties meet with a trained Mediator whose sole mission is to help the parties reach a mutually agreeable resolution to their dispute. The parties make their own decisions; decisions are not imposed on them. Disputes that have languished for months or years in the court system or in stalemated negotiations are often concluded to the satisfaction of all parties in one Mediation session.

Does Mediation work?

Yes. Approximately 25 years ago, the Florida courts, state and federal, began to experiment with using Mediation as a means to relieve congestion of the court dockets. Mediation became so successful that today, Mediation is routinely ordered in virtually every civil case in Florida.

Why does Mediation work?

There are many theories as to why Mediation works so well. Some believe that that presence of an objective third-party enables the parties to communicate more effectively than otherwise possible. Others believe that Mediation’s emphasis on the parties controlling their own destiny is what makes Mediation so successful. My personal opinion is that Mediation works because it is a cost-effective and confidential means of sorting out the ways in which parties might come to an agreement, and even if the parties do not settle their differences, they at least learn what they are fighting about.

Is Mediation limited to court cases?

No. Mediation can be used to resolve virtually any kind of dispute, personal or business. Mediation has been used for decades to resolve labor disputes in the U.S. and the U.K. Widespread use of Mediation as an alternative to litigation only began more recently. Mediation is particularly effective in breaking negotiation stalemates. For example, Mediation makes particular sense in the negotiation of sports contracts where traditional negotiations often result in posturing, delay and ultimately stalemate rather than progress toward a mutually satisfactory agreement.

What happens at Mediation?

Mediation is an informal process with no set format. Typically, though, the Mediation session takes the following course. The Mediation begins with a joint session including the Mediator and all parties. The Mediator explains the process and the ground rules, including the applicable rules on confidentiality. The parties are then given the opportunity to make presentations to the assembled group. The Mediator takes this opportunity to ask a few questions aimed at clarifying areas of agreement or disagreement. Discussion in joint session continues for as long as the Mediator deems them productive. The Mediator then breaks the parties into two or more groups for private sessions or “caucuses.” The Mediator uses the caucus sessions to work with the parties on developing specific proposals to resolve all or part of the dispute. The Mediator then engages in “shuttle diplomacy” until the parties reach agreement or the Mediator determines that no further progress is being made. If an agreement is reached, the agreement is put in writing and signed by the parties and their lawyers or other representatives.

Is Mediation confidential?

Yes. By Florida statute, subject to a few specific 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. The Florida Statutes include specific provisions on what happens if someone violates that confidentiality. Fla. Stat. §44.406. In addition, during a caucus session, a party can request that the Mediator keep specific information confidential from the other party or parties participating in the Mediation.

What should you send to the Mediator before the Mediation?

Most, though not all, Mediators request that a few days before the Mediation conference, the parties or their lawyers submit written summaries of the dispute called “Mediation Case Summaries.” Unless otherwise ordered by a court, Mediation Case Summaries are sent directly to the Mediator and shared with the other parties only if the party so desires. Mediation is informal, so the Mediation Case Summary need not take on any particular format. Generally, though, Mediators would like to see the following included: an overview of the situation; a summary of the issues, facts and any applicable law; a summary of the positions of the parties; and a summary of any prior negotiations. Charts are often helpful, particularly on financial calculations such as damages. If there is any specific information in the Mediation Case Summary that you do not want the Mediator to share with the other parties, you should highlight such information as confidential.