What is Mediation?

11 Mar 2021

Mediation can be a game-changing event in the course of a legal dispute. It can take place at any stage of the dispute, but is frequently required before certain actions can be taken. For example, it must be offered pre-suit in certain Florida Homeowners Association disputes (F.S. § 720.311), within 120 days after a medical negligence lawsuit is filed (F.S. § 766.108), and pre-trial in most Florida civil lawsuits. While uncommon, it can even be held post-judgment (e.g., to clarify how, or whether, the losing party in litigation must comply with the judgment).

Even many who are aware of the foregoing may be unaware of what mediation entails. Essentially, mediation is a meeting to resolve the legal dispute, with the assistance of a neutral third party (the mediator). It can be held physically, and is increasingly virtual both in the wake of the Coronavirus pandemic (but was trending toward that option prior to 2020). Perhaps the most crucial facilitator of a mediated resolution is that mediation discussions are confidential (with limited exceptions unlikely to affect our clientele). F.S. § 44.405. This confidentiality facilitate parties’ candor, and limit the posturing that is so common in litigation. That candor not infrequently includes acknowledging some level of fault and/or apology during mediation, without fear that the acknowledgement will be used in court. Of course, caution is still advisable, but the sanctions available offer significant protection. To ensure mediation is a fair and unbiased process, a mediator must be a neutral non-party to the litigation, and must maintain confidentiality even between the parties, unless expressly authorized otherwise. Moreover, the mediator’s post-mediation report is limited to a list of attendees, and whether a settlement was reached.

Another crucial consideration in mediation is that at least one attendee for each party must have full settlement authority. This does not mean they must be willing and able to drop all claims or defenses. Rather, it means they must at least know the party’s “best and final” settlement terms, and be authorized to enter an agreement if the subject matter of the mediation is settled. This avoids the risk that the parties’ theoretical mediated settlement could be rendered meaningless, and ensures at least the possibility of a meaningful, complete mediation.

Depending upon the parties’ respective mindsets, mediation can either incur additional time and cost, or can serve the purpose that both the Florida legislature and this author share: mediation can be a useful tool to save parties thousands of dollars in further litigation costs. It works best, in fact, when the parties are cognizant (and perhaps reminded) of their best and worst alternatives to a mediated settlement. The former can frequently be winning a case after months or years of additional headaches and expense, only to have to incur additional time and expense seeking to enforce their judgment. (See our article, You Win! So What?). The latter - losing after all that effort - should also be considered. The best resolution can often be one where the parties are not happy with the settlement, but each accept it in lieu of these alternatives. While it is not a mediator’s job to provide legal advice, we frequently see more positive results with mediators who know the relevant laws, and can ask questions to point out strengths and weaknesses of a case or defense. When parties become agitated, a good mediator can also facilitate negotiations without the parties having to be in the same room, and may be able to calm the parties (and frankly, their counsel) to a point where a meaningful settlement discussion that could not be had without the mediator becomes possible.

In short, mediation can be a helpful process to resolve a dispute with much less effort and expense, if the parties are willing to maintain an open mind and consider the alternatives to a settlement.