A Mediation Primer

 While most lawyers are well versed in the law, mechanics, and flow of mediation, their clients (perhaps you) might not be. Please view the content below for generalized points about mediation in Florida. 

Confused tools: a wrench negotiating a nail and a hammer poised over a bolt (Creative Commons)

What is Mediation?

Mediation is a voluntary and confidential process in which a neutral third party, called a mediator, helps litigants (the parties involved in a legal dispute) to resolve their issues and reach a mutually acceptable agreement. The mediator facilitates communication and negotiation between the parties to assist them in finding a resolution that meets their interests and needs.

Mediation is often a faster and less expensive alternative to traditional litigation. It empowers the litigants to actively participate in finding a resolution and allows for more flexibility and creativity in crafting solutions. Additionally, mediation can help preserve relationships and promote a sense of satisfaction and ownership over the outcome, as it is reached through mutual agreement. 

Person peeping through window blinds (Credit: Noelle Otto)

Confidentiality

Mediation is confidential except where disclosure is required or permitted by law. Why? Because mediation is most effective when parties exchange information. Perhaps new evidence is revealed, or new theories. Information exchange drives parties to evaluate and reevaluate their respective positions. In doing so, parties undergo a dynamic cost/benefit analysis that can facilitate resolution.

The mediator cannot tell the presiding judge who said what, who seems credible, or who seems untrustworthy. Instead, following the close of a mediation conference, the mediator can only report to the judge whether the matter settled, partially settled, or did not settle. That's it. 

Final puzzle piece close to completion of puzzle. (Creative Commons License)

Caucus

Most often (and most effective), a mediation will start with the parties in a "joint session." It can be awkward, sitting across from a litigation adversary, having to see them, and hear from them or their lawyers. But it's an important part of the information exchange. And it might be your only opportunity to speak to one another until trial or a final hearing. Take advantage of the opportunity to listen.

After an opening session, the parties will usually be placed into separate rooms to caucus with the mediator. The mediator will endeavor to travel from room to room, sharing what information they are permitted to share by the parties. While mediators try to keep regular time and contact with each room, times might not be uniform. Don't worry: time spent away is likely useful time.

Two hands reaching for each other, each holding a single puzzle piece. (Creative Commons License)

Self-Determination

There is no "winning mediation." Contrary to what some parties (and even some lawyers) think, you cannot win the conference. It's simply not a contest. It's a negotiated transaction. And a deal either closes, or it doesn't. In other words, the mediator does not decide anything. The mediator cannot declare a winner, or predict what will happen in the case. The mediator can discuss possible outcomes, but they cannot make decisions or force an outcome on the parties. 

The parties decide if, and how they settle. It's a consensual process.

A key concept in mediation is self-determination. The mediator is a third-party neutral; meant to help the parties find the common points of agreement, and craft a solution of their own choosing.