10 Things to Know about Mediation
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Published by TOP4 Team
Mediation is one form of alternative dispute resolution that has a lot of advantages compared to litigation. There are reasons why this process of negotiating a resolution between two parties is becoming popularly successful. Here are ten things you need to know about mediation.
What is said at the mediation stays at the mediation. For electronic leash and social media enthusiasts, no texting or posting about the mediation during or after the mediation.
2. Mediator is Impartial
The mediator will play the devil's advocate with both sides but is required to be impartial.
3. Required by Law
In 1988, Florida became one of the first states to require that all cases with very few exceptions be mediated in Florida. Compared with many states, the time from case filing until the trial is fairly short. Mediation is a big reason that is true. The judiciary boasts that the third branch of government operates on approximately 1% of the state budget. Mediation helps the judiciary save expense and other resources. In Federal court, the judge usually requires mediation in the scheduling order.
4. Settlement is Binding
If the parties enter into a properly drawn settlement agreement, the court will enforce it against a breaching party. In appropriate cases, the court may award attorneys fees for the enforcement proceeding against the breaching party.
5. No Home Field Advantage of Location
The mediation is confidential and thus there are no cheering crowds. The mediator is impartial and is not swayed by the location of the mediation, usually in the office of one of the parties' counsel.
6. How a Mediator is Qualified in Florida
While most states approach mediation a bit differently, Florida is one of the nationwide leaders in mediation and requires that the Supreme Court of Florida certify mediators. It used to be a requirement that mediators are lawyers but the Supreme Court eliminated that requirement a few years ago. Most lawyers are still more comfortable hiring lawyer/mediators, especially former trial lawyers who are intimately familiar with all aspects of litigation
7. Expense Involved in Mediation
The mediator is paid by the hour as are the lawyers in non-insurance cases. The mediator is always glad to be paid at the conclusion of the mediation. Mediations usually last a half day (3-4 hours) or a full day (6-8 hours) depending on the complexity of the case. There is no way to predict exactly how long a mediation meeting will take.
8. Mediators Report to the Court
After the mediation, the mediator is required to file a report with the court that only says who was present and only whether the case settled or not. Confidentiality requires that the judge not is informed about the course of negotiations.
9. Can't Win Case at Mediation and Settle
The mediation is not a trial and no one will be declared a winner or loser. If one or both parties decide that the case must be settled on their terms, it will likely impasse. If you are a party, please come to the mediation prepared to negotiate your position. Most lawyers will tell you that a good settlement is one in which neither side is particularly happy with the result but both sides are delighted that the case is over along with the expense, time commitment, stress etc.
While a mediation will be stressful, it is nothing compared to contemplating more litigation after an impasse mediation, having your deposition taken for many hours, sitting through a trial or testifying with a cross examination at trial. Doctors say that most illnesses are caused at least in part by stress. There are lawyers who agree on this. One lawyer said that after many years as an active trial lawyer, he encountered a heart condition that led to a stroke with two years of disability before he could return to his mediation practice.
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