Mediation - What to Expect

What to Expect

You and the other parties in your case will sit down together with the mediator in an informal, conference room setting. The mediator will begin by explaining the mediation process and will answer any questions you may have. Each side is given an opportunity to express their concerns and talk about the case from their point of view. During the negotiation process, the mediator helps the parties clarify what the issues are and consider possible ways to resolve their differences so that an agreement can be reached. There may be a time that the mediator speaks to each party privately. These are called “caucuses” and are confidential discussions between the mediator and the individual party. At the end of the mediation conference:

• The parties may reach an agreement on all of the issues in their case. This is produced in a written document and submitted to the judge for approval. Once the judge approves your agreement, it becomes a binding Order of the Court and your case is officially settled.
• The parties may come to an agreement on some, but not all, of the issues. This partial agreement is also produced in writing for the judge’s approval and the remaining disputes in your case will be decided by the Court.
• The parties may not agree on any of the issues, which is called an “impasse”. Your case will proceed through the normal judicial process and be decided by the Court.

Is mediation confidential?

Yes. Mediation is privileged and confidential, with certain exceptions which are noted in Chapter 44 of the Florida Statutes. One reason why mediation is so successful is that people are able to talk freely about their concerns, understanding that what they say cannot be used against them in court. Your discussions during mediation cannot be divulged to outside parties, including the judge. If you are unable to reach an agreement, the mediator simply reports this to the judge without commenting any further on your case. Judges are not informed of the reasons for an unsuccessful mediation and do not hold this against the parties. 

Note: Written agreements produced during mediation are submitted to the judge for approval and become part of the case file. Like most other court documents, these agreements are “of public record” unless otherwise ordered by the judge. 

Framing the issue(s) for Mediation

One very important step is for the parties to agree on what they disagree about.  That sounds obvious, and easy, but that’s not always the case, and at the rates you may be paying a mediator, you want to start out with both parties and the mediator clearly understanding the dispute question. 

For example, consider the case of the real estate broker who contracted for the exclusive right to sell a homeowner’s residence for six months.  The broker advertised the home for a couple of months, but didn’t find any interested parties.  Thereafter, the broker didn’t do any more advertising, and the homeowner got disgusted and agreed to sell the home to his brother-in-law for a reduced price.  Then the real estate broker told the homeowner that he was owed a commission because the home sold.  What is the issue to be mediated?

There are many possibilities, but one way of phrasing it could be:

(1) Is the broker entitled to a commission because the home sold, even without his help?

….and possibly…

(2) Does the failure of the broker to continue to market the property serve to void the contract so that the homeowner is not obligated to pay the commission? 

It’s easy to see that the mediation could focus on a discussion of many things, but an agreement on the disputed issue will help all parties and the mediator focus efficiently on the fundamental question.

Preparing for the Mediation meeting

As a party in mediation, it is to your advantage to be as prepared as possible for a mediation meeting.  That meeting is your best opportunity to work out an agreement that works to your advantage, and it is the last best chance to control the outcome.  If the mediation fails, you and the other party will both be subject to the judge’s view, and no one – not you, not your attorney, and not the mediator – will know what the judge or even a jury will do with the case. 

One way to prepare is to start out by asking yourself: 

“Where would I like to be on this issue a year from now?”

“What benefit do I achieve if my position prevails?”

“What detriment do I incur if the other side’s position prevails?”

The next step is to assemble your “evidence” about why the case should be decided the way you wish…why you should win.  Remember that the mediator will not know the case, and you’ll have to carefully “tell the story”.  However, the purpose of that is not to convince the mediator – remember that the mediator does not decide the case…the decision is made by the parties.   The reason you have your evidence is so that the other party can see the best argument about why you may win.  After all, if the other party isn’t afraid of losing, why would he or she agree to a settlement that gives him or her less than everything asked for?

In a sense, the opening moves in mediation are for you to show your strength to the other party – why you believe you’ll win.  Then the other party does the same to you – showing you the best reasons why you’ll lose.   Once each side has seen the “best shot” of the other side, the parties will have a better idea of how the case might unfold in a court case, and the more likely a settlement.

In one sense, then, the willingness of the other side to settle is driven by the fear that side has of losing, and the same goes for you – your willingness to settle at mediation is directly related to how likely you think it is that you will lose, or how much you fear what will happen if you do lose.

The other goal is to really, seriously think through how you could compromise.  In my experience of

mediating, there has never been a situation where one side explained his case, and the other side jumped up and said, “You’re right!  I am so wrong!  I give up!”  That won’t happen.  So what you have to be prepared to do is give the other side something better than a complete loss. 

For example, if you own a car, and you take it to an auto engine repair shop to have the engine fixed, you may get your car back with the engine not running any better and you may refuse to pay the bill for $1,000.  The auto engine shop prepares to sue you.  What can you lose?  The $1,000.  What can you gain?  Not having to pay anything because the engine is no better. 

Are you sure you’ll win?  No.  Is the other side sure he’ll win?  No.  You might put forward to him your reasons why you think you’ll win, but after you hear his reasons why you should have to pay, you may recognize that the judge may agree with him, and if there is a 50-50 chance of that happening, it may make sense to take the safe bet and offer to pay the other side, say, $400.00.  The other side may think that he has a good case, but recognizes that if the car is not running better, the judge may agree with you, and he may be willing to settle for $600.00, reasoning that getting $600 is better than getting nothing.  So it’s to your advantage to prepare your case well, but to know what you’d be willing to settle for to close out the case and not risk having to pay the entire $1,000. Keep that in mind what your goal is in preparation – prepare to win, but assess the value of settling.

Conducting the Mediation

Appearance by parties. For court-ordered mediation, the parties must appear when scheduled by the court. 

Court Rule 1.720 (b) Sanctions for Failure to Appear provides that if a party who has notice fails to appear at a mediation conference without good cause, the court, upon motion by the other party, shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. Unless stipulated by the parties or court to the otherwise, parties are physically present when:

• The party is present
• The party’s representative having full authority to settle without further consultation
• The party’s counsel of record

Now that you’ve identified the mediator, a mutually-agreeable time and place will be established.  If it is court ordered, it may not be mutually agreed, but decided by the court.

Mediation procedure and confidentiality.

When the parties are seated, the mediator will explain that the proceedings are confidential, and what’s discussed in the mediation can’t be brought up later.  That means that if the other side makes an offer to settle the case for $400.00, you can’t say to the judge (assuming that mediation fails), “Well judge, he OFFERED $400.00 in mediation.”   Florida Statutes 44.102(3) provides that a party in a court-ordered mediation proceeding can assert a privilege to refuse to disclose, and to prevent any other person present at the session from disclosing, communications occurring in the mediation. The only part of a mediation that is permissible to disclose is the written agreement to mediate.

Rule 1.720 (d) provides that the mediator shall at all times be in control of the mediation, and the procedures to be followed in the mediation.  Attorneys representing clients who are parties can be present, but the mediator is in control.  Counsel for the parties shall be permitted to communicate privately with their clients, and if present in the mediation, will normally speak for the client.  In the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by court.  However, from a practical point of view, most mediators will not move forward if a party’s attorney has left the room, unless prior arrangements have been made with the party and his or her attorney.

The mediator will ask the party bringing the complaint to explain his side of the story.  That doesn’t typically mean that the party should explain every little detail, but rather that the party should give the mediator an overview of the case from the party’s perspective.  The other party should sit quietly and not interrupt – that party will have its turn to correct any errors or misstatements by the first party later. 

The other party will then have the opportunity to tell the other side of the story.  Both parties can provide copies of contracts, repair orders, bills incurred, photos, etc. but the mediator may or may not want to see them – remember that the mediator will not be making the decision, if a decision is made.  

After these opening statements, the mediator may ask questions, or may ask that one party leave the room so the mediator can talk with the other party privately.  This is referred to as a “caucus”.  The mediator may then want to talk to the other party privately, or may not.  Any caucus discussion is confidential too, and can’t be disclosed to the party who was not in the caucus unless the party in caucus agrees. 

Sequestration of Parties. The parties may be kept separate, and never see each other again in the proceeding, or they may be brought back to the table.  Generally speaking, business mediations tend to be unemotional, but in emotionally charged mediations, like a divorce or child custody case, it may work best to keep the parties in different rooms, with the mediator shuttling back and forth between the parties.

Agreement, partial agreement, and Impasse

If the parties don’t reach agreement, then the plaintiff or complainant (the one bringing the case up in the first place) can proceed to take legal action, if he or she chooses to do so.  Rule 1.730(a) provides that if the parties do not reach agreement on any matter in a court-ordered mediation, the mediator will report the lack of agreement (impasse) to the court without comment or recommendation. 

Note that if there are three issues in the mediation, and there is resolution of two of the issues, the parties may agree that the three issues are independent or inter-dependent.  If the three are independent, then the mediation has resolved two of the issues, and only the third issue will be returned to the judge for a court decision. 

However, if the parties cannot agree that the three issues are independent, then there is deemed to be NO agreement, and all three issues are returned to the judge, with annotation that there is no agreement, and the judge will rule on all three issues.

If there is agreement, then it has to be implemented. A mediation can be conducted on a given day, and if not completed, it can be continued to another day mutually convenient to the parties.  However, Court Rule 1.710(1) Completion of Mediation provides that mediation must be completed within 45 days of the first mediation conference unless extended by order of the court or stipulation of the parties.

Implementing the mediated Agreement

If the parties have reached agreement on what will resolve the dispute, the mediator will help them write an agreement.  It’s important to have the mediator’s assistance on this so that the wording is clear and it doesn’t leave important questions unanswered.  For example, if the parties agree that defendant will pay plaintiff $10,000,

• When is it to be paid? 
• Where? 
• Is a check OK or not? 

Does the $10,000 settle “all issues arising out of or in connection with the dispute”, or can a party

bring another action on some unsettled aspect of the dispute? 

The agreement can result in a party returning goods, or paying money to the other party, or can require a party to do something, or stop doing something.  All this needs to be spelled out, along with when the agreed action must be completed, and what the completion consists of.  For example, if the agreement is that the car owner will return the car to the dealership and get money refunded, is the car owner liable for the miles on the car and have his refund reduced by the number of miles driven, or does he get all his money back?

Enforcement of the mediated Agreement

Once the agreement is signed, it is a contract between the parties, and is enforceable so long as the actions agreed to in the mediation agreement are legal and possible to be performed.  If the agreed actions are not taken by the parties by the agreed time, the aggrieved party can bring an action in court to enforce the agreement.  Basically, this means that the issues in the original case are no longer relevant in most instances, and the judge won’t look to see what the agreement was about.  The judge will merely note that there is an agreement to do certain things and that a party has breached the agreement, resulting in a court order for the party to perform, or for the breaching party to pay money damages for not performing.

*This article was in my files, I did not write it. I would be happy to give author credit, but I don't know where this came from. I don't mean to plagiarize, I don't know who wrote this, but I think it is good information well worth sharing.