What is Mediation?
Mediation is one form of Alternative Dispute Resolution. Mediation is a process where the parties to a dispute meet with a neutral trained facilitator, called a “mediator”, to try to resolve areas of conflict. The parties, their attorneys, and the mediator will all meet at the mediation location discuss the goals of each party, the reality of each party’s position and explore possible solutions. Most mediations occur at the mediators offices as this is a neutral location.
Mediation is required for cases litigated in State and Federal Courts in Florida. Parties often agree to mediation or the Court can enter an Order requiring mediation or a settlement conference. The Courts like mediation as statistically there is a good chance that a case will resolve at mediation and in the very least the parties and their counsel have discussed the case and possible resolution in detail.
Mediation gives the parties more control than a trial, certainty on the result, saves litigation and trial costs, helps save the Court’s time, and is generally a friendlier process for the parties. Most clients prefer making their own decisions rather than leaving their fate to a judge or jury who do not know them.
The mediator facilitates the exchange of information and settlement alternatives between the parties. Mediation is characterized by a business-like, cooperative climate which sets the stage for constructive communication in the future. Accordingly, mediation is used extensively as this process gives control of resolution of the case to the parties and allows for everyone to make “business discussions.”
Mediators provide a cooperative environment which encourages open and honest discussion. The mediator’s role is an impartial one, identifying issues, exploring underlying interests, suggesting options and balancing power. Mediators encourage the parties to put the past behind them and to focus on the present and future.
Mediation is a confidential process. The mediator cannot be called as a witness at trial. If no settlement is reached, the mediator will notify the Court, but will not include any details.
Most mediators destroy all notes taken at the end of mediation. No tape recorders are allowed at mediation. No Service of Process (subpoenas, summons, citations, writs, etc.) is allowed at or near the mediation site.
The mediator establishes and enforces procedures which are fair and even-handed and which provide all sides a chance to be heard. Mediation also provides an opportunity to express emotions or frustrations which may be blocking negotiations and to address these underlying concerns in a controlled environment. The mediator acts as an agent of reality helping parties think about their claims, damages, litigation costs and exposure to the parties. Mediators also assist in fashioning a settlement agreement and exploring all options to resolve the pending dispute.
Six Step Process to Formal Mediation
There are 6 steps to a formal mediation; 1) introductory remarks, 2) statement of the problem by the parties, 3) information gathering time, 4) identification of the problems, 5) bargaining and generating options, and 6) reaching an agreement.
1 Introductory Remarks
The mediator will wait until both parties are present and then make introductions. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issues and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process.
2 Statement of the Problem by the Parties
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the Plaintiff(s) will go first. The statement is not necessarily a recital of the facts, but it also gives the parties an opportunity to frame issues their own way and to give the mediator and the other side more information on items that may not be apparent from the documents such as the emotional state of the party or outside influences.
Opposing sides almost always say things that upset or anger the other side. This is normal as you would not need mediation unless there was a dispute. Although you will likely hear things that you believe to be untrue or are inflammatory, you should listen to these remarks and try not to get visibly upset at same. You always want to understand what the other side’s argument is and what they believe is important. This is particularly true if the other side is relying on factually incorrect positions or emotions as these may get worked out during the mediation. Again, it is important to listen – not necessarily agree.
3 Information Gathering and Caucus
The mediator will often ask for an initial demand/offer and take some time to try to get to know the parties and explore questions that the mediator may have or that are issues to be resolved in the dispute. The mediator may ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and may summarize the facts or issues in dispute. This helps the mediator build rapport between the parties, especially when a facilitative mediation style is used. Generally, the mediator will separate the parties after the opening statements and each side will have their own room or area to caucus.
The mediator may decide to hold private sessions (caucus) with both parties in order to move the negotiations along. These caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is
to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
4 Problem Identification
The mediator tries to find common goals between the parties and determine what the “real” issues are. The mediator will figure out which issues are going to be able to settle or those that will settle first. Most of the time money is the driving force of the dispute, but often other considerations may be very important even if these were not previously considered by the parties.
5 Bargaining and Generating Options / Reaching an Agreement
Once the participants are committed to achieving a negotiated settlement, the mediator will start the process of negotiations. This is usually a back and forth (ping pong) as to demands and offers that are shuttled back and forth between the parties by the mediator. Sometimes various documents will be provided and the mediator may propose a brainstorming session to explore potential solutions.
The end goal of mediation is to reach a final agreement, which diffuses the conflict and provides a new basis for future relations. If an agreement is reached at mediation, the parties and the attorneys will sign a mediation agreement. Each party and attorney gets a copy of this agreement.
Although the case may be settled at mediation and the settlement amounts are determined, this does not mean that you will get paid at that time. Generally, counsel for the defendant will spend a week or so preparing proposed Releases and settlement documents.
These are provided to plaintiff’s counsel and there is usually a little back and forth as to the proposed settlement documents. There may also be requests for additional documents or information and sometimes the concerns of third parties such as to lien holders must be taken into account.
Most defendants will provide payment for the settlement within thirty (30) days of their receipt of agreed to and executed settlement documents. The attorneys must prepare and file a number of documents to fully close cases that are pending with the Courts and to resolve hearings and discovery appointments that may have been previously scheduled.
If no agreement is reached, the case will proceed and the disputed issues will be heard by the judge or a jury, if appropriate.
Often mediators will suggest different strategies for the negotiations. The mediator may propose brackets, demands at different numbers, providing the other party with documents or information and/or breakout sessions with different individuals i.e. just the lawyers talking to each other. The mediator’s suggestions are just that suggestions. These suggestions do not have to be followed; however, mediators are trained to mediate and they are in both rooms and should have a good idea of what both sides are thinking. Thus, mediator’s advice should at least be considered.
Generally, the parties split the cost of mediation. Mediators are well paid and most mediators charge $400 – $500 per hour and require a non-refundable deposit. It is sometimes important to remember that mediators are charging by the hour and that mediations can be expensive for all parties involved. If there are a number of attorneys present at mediation and clients are taking a day or an afternoon off from their work, this all adds up. Thus, it is important to note the expense of mediation and that these expenses may assist or preclude resolution based on the increased costs involved or time needed by the parties from other matters.
If there are a number of attorneys present at mediation and clients are taking a day or an afternoon off from their work, this all adds up. Thus, it is important to note the expense of mediation and that these expenses may assist or preclude resolution based on the increased costs involved or time needed by the parties from other matters.
How Long will the Mediation Last?
The length of time needed for a mediation depends on the complexity of the dispute, the commitment and communication skills of the parties and the orientation or limitations of the mediator. Most mediations are scheduled for a morning or afternoon session and last two to five hours. We believe that 90% of the negotiating occurs in the last 10% of the mediation and often mediations that run longer are better for clients and are more likely to resolve the case. Thus, you should set aside a full day or evening for your mediation and make sure that you do not have obligations, such as picking up children from school that will cause problems if the mediation runs longer than anticipated or scheduled.
What you Need to do to Prepare for Mediation
Although clients are allowed to speak at mediations and there may be an opportunity for them to do so at the opening remarks, generally we advise clients not to make any comments. This makes the process easier for clients as they do not have to prepare anything and they have the peace of mind of knowing that we will do all the talking. If there is something in particular that you do want to state directly to the other party, we ask that you prepare remarks in writing and discuss these possible remarks with us.
As the goal for all parties at mediation should be resolving the dispute and as money is almost always the only or main way to resolve disputes in our legal system, you should prepare for the mediation by figuring out a dollar amount that you will take to resolve the dispute and what, if anything, will be helpful to say or present to achieve that goal.
You may want to write down a list of issues and goals and to review with us before mediation. We will want to review and discuss your settlement authorization prior to mediation and review your goals and expectations for mediation. We are also happy to try to work through any “emotional issues” so that you can focus on the mediation and make a business discussion.
As mediation gives us an opportunity to bolster your case and show your damages and expectations, be sure that you bring everything (pictures, invoices, receipts, emails, paperwork, etc.) that you think will be helpful to mediation. If you have any “new” estimates, invoices as to damages or a “smoking gun” documents, now is the time to have it and possibly use it. You can leave the items in the car, but they need to be available if needed. You do not want to look back at mediation and think that you could have possibly gotten more money or a better result if you had only brought something with you that you did not.
What to Wear to Mediation
In addition to looking at the facts of a case, lawyers and clients will look to a party’s appearance to try to gleam information about them and to try to determine how a jury will relate to them. As appearances are important and you only get one time to make first impressions, we encourage you to wear professional attire. You should also wear something that is comfortable since you will likely be there for several hours. You may also want to bring a sweater if you get cold easily.
Who Can Attend Mediation
Normally friends and/or family members are not allowed at mediation unless all parties and the mediator agree. However; if one of the parties is married or has a full time caregiver, the spouse is and/or caregiver is usually allowed into the mediation if the other side has been advised that this person may attend. Children are generally not allowed at mediation.
If children attend, the mediator will usually ask that a third party be there to attend to. Make these arrangements in advance to avoid any confusion and be sure you have made babysitting and transportation arrangements for the children.
We are happy for you to have anyone present at the mediation that will help get the dispute resolved. As this is a confidential settlement conference and as many third parties may be witnesses, most attorneys will request that public adjusters and other third parties are excluded from at least the initial opening statements. If allowed to attend other parts of the mediation, counsel often require third parties to execute confidentially agreements as to any information that they learn or documents that they review during mediation.
What Not to Say or Do at Mediation
Generally clients do not give any information or have much interaction with the opposing side. We believe that clients should only make statements or have discussions after they have discussed what may be said with counsel. As many mediators are very friendly and as the discussions are casual and confidential, there will likely be caucus seasons wherein the mediator speaks directly to you and asks a number of questions. Although these conversations are very friendly and may not be directly related to your case – be aware that mediators are trained to get specific information and can and will use that information. Thus, although these conferences are confidential and you may tell the mediator not to tell the opposing side, you cannot put the “cat back in the bag.”
As an example of what not to do, don’t tell the mediator exactly what your bottom line number to settle the case is. We recently had a husband and wife as clients at a mediation. The wife blurted out “We just need $_____ and that is all we need, get this number and let’s leave.” An hour or so later, we had the opposing party close to settling the case at substantially more than the number that the wife had blurted out. We tried to push for more money, but the mediator already knew what the clients (or at least the wife wanted) and we believe that the case settled for less than it would have if the client had not blurted out her requested figure.
Importantly, the parties and mediators are not just looking for someone to make statements as outlined above, but they are looking carefully for body language and your expressions. Some companies have employees that do all of their mediations and only attend mediations. These professionals are trained to read your body language and often say or do things to see what your reaction may be. Thus, you should try to have a “poker face” and try not to visibly react to offers or statements.
Mediation is very important and is often the best opportunity that you will have to resolve your dispute.
Prepare for the mediation including determining reasonable goals and an amount of money or what it will take to resolve the dispute.
Bring any important documents or items that you think are crucial for your case.
Listen to everyone, including the other side and the mediator, so that you know and understand everyone’s position even if you disagree with same.
Do not react to offers or statements and be careful as to what you say.
Listen to the mediators and counsel’s suggestions and advice.
Mediation is confidential and there are serious implications for disclosing information.
All dispute resolution is about compromise.
Many mediators advise that to have a successful mediation both sides have to be unhappy.
One side has to pay or give more than they want and the other side must accept less than they want.
Be optimistic that the case will resolve if your goals are reasonable.