Mediation is a process where Parties and their attorneys meet with a third party, called a Mediator, in an effort to reach an agreement without going through the time an expense of a trial or hearing. Unlike a Judge or and Arbitrator, the Mediator has no power or ability to force the Parties to do anything. The Mediator is simply an impartial third party who tries to add perspective for both sides in an effort to broker an agreement that everyone can live with.
Most courts in the State of Florida require mediation prior to a trial taking place. Locally, in the Tampa Bay area, there are two types of Mediation available. Parties can participate in a court mediation program or hire a private mediator.
The advantage of court provided mediation is cost. The local courts provide mediators at the very reasonable fee of $60.00 per Party if the Parties' combined incomes are less than $50,000.00 and $120 per Party if the Parties' combined incomes exceed $50,000.00. The mediators are assigned through court mediation. You will not have a choice of mediator. Mediation is typically scheduled for a 3 hour maximum.
While private mediation can be expensive, ranging from $200 - $300 dollars an hour and sometimes even more, paying for private mediation in complex cases can end up saving you thousands of dollars in the long run. One of the advantages of private mediation is that Parties may choose any mediator they can agree to. Choosing the right mediator for your specific case can make the difference between reaching a settlement or moving on to trial. Additionally, there are not time limitations in private mediation.
Mediation is a confidential process. With some extremely limited exceptions, nothing that is said in mediation can be repeated outside mediation. The Court will not ever hear what occurred in mediation. The reason for this rule is so that Parties can openly and honestly negotiate without fear that, if an agreement is not reached, that the other Party will be in court arguing that you were willing to agree to the matter in mediation.
Typically, the Parties and their attorneys will meet with the mediator in one room to start. The mediator will make some, hopefully brief, introductory comments concerning the process and confidentiality. The Parties or their attorneys are then allowed to make an opening statement. This is not as formal as it sounds. Usually both attorneys will simply state what the issues in the case are and what their positions are on these issues. From there, each Party and their attorney will usually separate into different rooms. The mediator will spend time with both sides and go back and forth from each room trying to get the Parties to agree. This process will continue until either an agreement is reached or it becomes clear that an agreement is not going to be reached which is called an Impasse.
Mediation is an important process and many cases have been resolved in mediation. Considering the cost of going to trial, it makes sense to do everything you can to settle a case. I am constantly shocked at the cases I have settled in mediation. I have gone into many mediations thinking to myself that the Parties could not be further apart and that there was no chance of the case settling. I was wrong. You like that? (A lawyer said he was wrong!). Always go into mediation having a sense of what is really important to you and what you may be able to bend on. At the same time, and most importantly, go into mediation with an open mind.
Many Parties think they will go into mediation, see what happens, and then, if it does not work out, they will hire an attorney. The problem is these agreements are binding and unless you have a thorough knowledge of what each Party is entitled to, you are negotiating blindly. I get at least one call a month from a Party who has gone in to mediation, signed an agreement and later learned what a mistake they had made. If you have an upcoming mediation, please consult Michael D. Fluke, P.A. immediately. I'll bet you will be glad you did!