OVERVIEW OF MEDIATION

Key characteristics of Mediation

  • There is a dispute between two or more parties.
  • The parties meet with a neutral mediator to discuss the dispute, looking for an outcome that all parties can accept. Often this focuses on the interests of the parties, not merely the position that a party is taking in the dispute.
  • The mediator does not decide the case – only the parties have the power to come to an agreement that is facilitated by the mediator. This contrasts with arbitration, where the arbitrator acts like a judge, hearing the arguments and evidence of both sides and then making a decision about who wins and loses.

Statutory basis of Mediation in Florida

Mediation in Florida is governed by Florida Statutes Chapter 44 and by Florida Rules of Court, Sections 1.700 – 1.750.

QUESTIONS AND ANSWERS ABOUT MEDIATION

Yes.  Chapter 44, Florida Statutes, gives any trial judge the authority to send any contested civil matter to mediation with a few case exceptions.  In Northeast Florida, the general practice is to direct all cases to mediation before being allowed to go to trial.  In some counties outside Northeast Florida, the judges allow the parties to decide whether they would like to try mediation before trial.

However, while you may be required to attend the mediation, there is no requirement that you reach settlement with the other party.  Generally, the mediator will expect you to make reasonable effort to discuss the case and how it might be resolved, but you don’t have to settle it.

A wide variety of civil cases go to mediation.  Civil cases are those where one person or business is suing another person or organization.   Criminal cases, in contrast, are initiated by a complaint filed by a state attorney or police agency, not another private party.  In criminal cases, you can be found “guilty”, and that would put you at risk for going to jail or paying a fine.  In civil cases, you can be found “liable” – which means you can be required to pay the other party if you lose.

Examples of cases that typically go to mediation:

  • A furniture store sues a customer who has stopped paying monthly payments.
  • A church pastor loans church money to a church member, but the member has not paid back any of it, even though repayment was agreed.
  • A renter sues a landlord who refuses to give the renter the security deposit back.
  • A former employee sues a boss who owes him three months back pay.
  • A homeowner sues the parents of a child who broke the homeowner’s expensive patio tile.
  • An employer fires a worker, and the worker files an EEO complaint.  The EEO agency (either state or federal EEO, or another agency acting for the state or federal organization) may direct the parties to mediation before investigating the EEO complaint to see if a resolution can be achieved by the parties.
  • A husband and wife are divorcing, and the court directs the parties to mediation to see if they can agree on property settlement, child custody and support, visitation, and other issues.

Mediation works best when:

  • The parties want to retain a working relationship after the dispute ends.

Mediation works best when the parties have a relationship that they both want to retain after this dispute is settled.  Many parties have a dispute that must be resolved, but there is an underlying relationship – business, personal, neighbors, retailer-consumer, etc.  – that they want to keep.

  • There is an outcome that can be beneficial to both parties.

If the dispute is one where a resolution can be set up that is more than a “I win, you lose” outcome, it has a better chance of succeeding.  For example, if the defendant who owes $2,000 for furniture owns a landscaping company, maybe a settlement can be $1,000 cash paid, plus $1,500 in free landscaping services.  See the examples of “creative solutions” below for more ideas.

  • There are multiple ways the dispute can be resolved.

If the dispute resolution aims toward outcome, not process, it stands a better chance of being resolved in mediation.   For example, if the dispute is unpaid rent, the landlord only wants to recover the money.  It might be possible for the renter to refer some customers to the landlord, and get $200 credit for each referral that resulted in a new tenant. (Of course, maybe the landlord won’t want a referral from this tenant!) The key is that the parties focused on the outcome – money for the landlord – not the way it is achieved (whether the renter pays it, or earns it by referrals).

  • The dispute can be focused on the outcome and interests, more than on specific events.

If a homeowner is having trouble with a neighbor and sues him because of continuing loud noise at night, the interest is in the relationship, not the specific event that caused that specific noise.  Parties can agree on future behavior, and on what will happen if the behavior does not meet the agreed standard.

  • The cost of litigation is greater than the expected benefit from winning.

In most cases, the cost of litigation is at least a few thousand dollars.  Unless the case is worth many thousand, and your win is almost guaranteed, you’ll be better off mediating it than spending the money up front to take a chance on winning the case.

  • The parties don’t want to air all the dirty laundry in court.

Where both parties have behaved in a way that they’d not want to read about in the local paper, it is in their interest to mediate and not give the local editor something to write about.

Yes.  There are three ways that mediation can occur.  The first is that mediation is ordered or recommended by a judge for a lawsuit that has been filed.

Another way is to seek the services of a mediator after the dispute occurs, but before the lawsuit is filed.  By doing that, the parties avoid the filing fees, and the time that is required for service of process on the defendant, the allowance for the defendant to have time to file an answer (20 days) and the time required to get a court date.  All the above can add up to three or more months.   Some parties to dispute prefer to go to the mediator first, and that is entirely permissible and under many circumstances, it is a faster and less-expensive way to address the issue.

The final way to invoke mediation is to provide for it when the parties first enter into an agreement that could foreseeably result in a dispute.  Such an agreement typically stipulates that if there are any disputes that arise out of the relationship, those disputes will be mediated, and then if not resolved, arbitrated.  Some agreements specify who pays, how mediators and arbitrators are selected, and other aspects of the dispute resolution process.

Businesses that sell products and services often include mediation and/or arbitration provisions in the sales contracts with buyers.

THE MEDIATION PROCESS

Enabling the Mediation process

Mediation occurs either because the parties in the dispute agree to it, or because a judge hearing a lawsuit orders it.

The parties can agree in either of two ways.  One way is that the parties agreed at the time of the transaction that gives rise to the dispute that if there is a dispute, it would be mediated.  For example, a real estate broker or agent may sign a listing agreement with a homeowner to market the homeowner’s residence.  The listing agreement may have a clause that “in the event that there is a dispute between the Realtor and the listing homeowner, that dispute will be subject to mediation, and if that is unsuccessful, to binding arbitration.

Another way the parties can agree to mediation is to do so when a dispute arises.  Let’s use the example above.  If the homeowner sells the residence on his own to his brother-in-law, he may believe that he owes no commission to the real estate broker.  The broker wrote in the contract that if the home is sold, no matter by whom or to whom, a commission is payable.  The real estate broker and homeowner may disagree on whether a commission is due to the broker, and there may be no provision for dispute resolution in the contract.  However, both parties recognize that a lawsuit will be expensive and take much time from both sides, so they’ll agree to use the services of a mediator to try to come to an agreeable resolution.

Finally, of course, the broker can file a lawsuit to obtain the commission fee from the homeowner, and when the judge first reviews the case, she can order the parties to mediation, and then actually hear the case only if mediation doesn’t result in an agreement.

Initiating the Mediation process

If the mediation process is enabled to occur, the next step is initiating it.  The mediation process can be initiated by the judge, if a lawsuit has been filed.  If a case has not yet been filed, it can be initiated either by a specific event, or by an agreement by the parties.  For example, the real estate contract may provide that either party can invoke mediation if he or she feels the contract has been breached.  Or, the mediation can be invoked by an agreement of the parties.

The first step is identifying the mediator.  Often, the mediator will be identified in the previously-agreed provision to mediate any disputes, or the mediator may be assigned by a judge.  In many instances, such as a divorce, the divorce mediator (known as a family law mediator) may be selected by agreement of the attorney representing the husband, and the attorney representing the wife.

The parties can often mutually agree on a mediator with help from their attorneys, or they may seek one through neutral associations such as the Better Business Bureau (for commercial mediations), or the Jacksonville Human Rights Commission (for employment mediation) or even the Yellow Pages of the Phone Book.

There are a number of rules that can make the mediation process more efficient and effective.  These are well stated at www.Findlaw.com, and are linked here:

http://library.findlaw.com/1999/Aug/1/126254.html.

Factors to consider in selecting the mediator

Some questions can help the parties identify if a mediator will be suitable:

  • What relevant training and education does the mediator possess?
  • What professional associations does the mediator belong to?
  • How much continuing mediator education has the mediator had in the last year?
  • How many cases of this type has the mediator handled? \
  • Does the mediator currently conduct mediations for recognized organizations such as the Better Business Bureau, the local courts, or other recognized consumer, industry, commercial or judicial entities?

While there is no absolute correct answer to any of the above questions, they can help you assess how well the mediator may do in the case.

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?

Conducting the Mediation

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.

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.

Judicial Immunity of the Mediator

Note that Florida Statutes 44.107 provide that the mediator in a court-ordered mediation shall have judicial immunity in the same manner and to the same extent as a judge.

A PROCESS FOR RESOLVING IMPASSE

  1. Take a break when impasse is obvious.
  2. Then talk with each party privately to explain use of special resolution techniques to attempt to resolve impasse.
  3. Ask parties if they will follow this process to achieve resolution.
  4. Back in group, mediator use flip chart (or other technique) to lead discussion.
  1. Write “Benefit of settlement” on sheet – invite both parties to list benefits.
  2. Ask each party: “What do you THINK will happen if this goes to court?”
  3. Ask each party: “What is the WORST that can happen if this goes to court?”
  1. Restate areas where parties have agreed thusfar. (May have to break issue down into component parts to carve out what is agreed so far.)
  2. Point out concessions or other “good faith” exhibited by each party so far.
  1. Ask parties to agree on the “issue” statement – what is being mediated.
  2. If more than one issue statement, ask them to rank importance of each issue.
  3. Be aware of potential for unstated goals or issues – try to identify privately.
  1. Ask parties to explain why they appear to be at impasse – it focuses them.
  2. Ask parties to explain their concerns – why they can’t agree with other side.
  3. Mediator use flip chart (or other) to summarize positions on issues.
  4. Mediator takes a party’s position, and asks a party to act as mediator.
  5. Where appropriate, if parties can’t agree on value of something, ask parties if they can at least agree on a process to evaluate that value.
  6. Mediator confrontation: If party is reluctant or argumentative, confront that party privately – ask what the party is doing, and what will likely happen if it continues
  1. Ask each party: “Where would you like to be on this issue a year from now?”
  2. Ask each party: “What benefit do you achieve if your position prevails?”
  3. Ask each party: “What detriment do you incur if other side’s position prevails?”
  1. Ask each party: “How might you get to this – what alternatives could get there?”
  2. Mediator offers “strawman” outcomes – “what if?” if parties don’t have ideas.
  3. Mediator offers model – “Others in similar situation have done “X”.”
  1. Write solutions down left side of matrix, and “Party 1” and “Party 2” across top.
  2. Populate cells with “+” and “-“ plus short descriptive phrases.
  • Trial periods – could something be done for a “test period” to try it?
    Example 1: Where dispute is about the obligation to permit a landowner to cross another’s property to get to his property, and the other didn’t agree, the parties could agree to a 3- or 6-month test period to see how it works.

 

  • Agree to payments, but condition them on specific events occurring.
    Example 2: (Where amount in controversy is $3,000): “I’ll agree to pay you $1,000 now, and if you continue to (do something or not do something) for a year, I’ll pay the other $2,000.
    Example 3: Hairpiece company owner bothered by irate customer who wants his money back agrees to refund to dissatisfied customer if customer agrees to stay away from business for a year.

 

  • Look for opportunity for a party to compensate in business services, not cash.
    Example 4: Tenant is a startup pool services company. Tenant’s business is damaged by water pipe burst, and tenant seeks recovery from landlord who disputes the amount. Solution may be for landlord to pay half the requested amount, and agree to use pool service at his home for a year.
    Example 5: Girlfriend lends boyfriend $2,000. Boyfriend fails to pay note. In mediation, former boyfriend agrees to pay some, but not enough to cover total debt. They agree on girl accepting $1,300, plus boyfriend – who is a fence builder – agrees to build girl’s fence for cost of materials only.

 

  • If no other way to resolve, see if parties can agree on a third party deciding.
    Example 6: Homeowner hires landscaper to landscape back yard. Homeowner is dissatisfied with the outcome. Landscaper is not willing to accept less payment, saying the job is just fine. Parties both know and respect a specific nursery in the area. They agree in mediation that nursery can arbitrate to decide how much the homeowner has to pay the landscaper, if any, and the nursery agrees to do so for a fee of $200.00, half paid by each.

At some point, it may be that the parties simply can’t seem to agree on key points, and it appears that there will be no chance of agreement.  This is referred to as an impasse.

Impasse is necessarily a “bad” or “good” outcome – the benefit of coming to an agreed settlement in mediation may be good for the parties, but if one party is unreasonable, then agreement may prove to be unreachable.   If that’s the case, then the dispute will have to be resolved by the court, or by arbitration, depending on the relevant contract language and or relevant statutes.

There are some techniques that can be tried to break an impasse so that the parties can reach agreement, and your mediator may use them. There an unlimited number of such techniques, and here are some examples:

  1. Trial periods – could something be done for a “test period” to try it?
    Example 1:  Where dispute is about the obligation to permit a landowner to cross another’s property to get to his property, and the other didn’t agree, the parties could agree to a 3- or 6-month test period to see how it works.
  2. Agree to paymentsbut condition them on specific events occurring.
    Example 2: (Where amount in controversy is $3,000): “I’ll agree to pay you $1,000 now, and if you continue to (do something or not do something) for a year, I’ll pay the other $2,000.
    Example 3: Hairpiece company owner bothered by irate customer who wants his money back agrees to refund to dissatisfied customer if customer agrees to stay away from business for a year.
  3. Look for opportunity for a party to compensate in business services, not cash.
    Example 4: Tenant is a startup pool services company.  Tenant’s business is damaged by water pipe burst, and tenant seeks recovery from landlord who disputes the amount.  Solution may be for landlord to pay half the requested amount, and agree to use pool service at his home for a year.
    Example 5:  Girlfriend lends boyfriend $2,000.  Boyfriend fails to pay note.  In mediation, former boyfriend agrees to pay some, but not enough to cover total debt.  They agree on girl accepting $1,300, plus boyfriend – who is a fence builder – agrees to build girl’s fence for cost of materials only.
  4. If no other way to resolve, see if parties can agree on a third party deciding.
    Example 6: Homeowner hires landscaper to landscape back yard.  Homeowner is dissatisfied with the outcome.  Landscaper is not willing to accept less payment, saying the job is just fine.  Parties both know and respect a specific nursery in the area.  They agree in mediation that nursery can arbitrate to decide how much the homeowner has to pay the landscaper, if any, and the nursery agrees to do so for a fee of $200.00, half paid by each.

As you can see, the approaches to resolving impasse and achieving an agreement in mediation are limited only by the imagination of the parties and the mediator.  In one memorable case that I recall, the parties agreed to just flip a coin.  Heads plaintiff wins, tails defendant wins.

If it works for them and resolves the dispute…whatever works.

LINKS TO OTHER REFERENCES ON MEDIATION

For more information on mediation, visit the web sites that are linked here.