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?”
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
- Representative of the insurance carrier for the insured party who is not the carrier’s outside counsel, and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
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.