MEDIATION

Informal and non-adversarial, the non-binding process of mediation consists of parties agreeing upon an impartial mediator to hear the relevant facts of a dispute and the positions of each party. The parties come together for a Mediation Conference facilitated by one of our Mediators.  Our Mediators are trained and experienced in assisting parties to reach their own negotiated dispute resolution. Approximately 95 percent of the disputes submitted to mediation reach resolution and avoid further litigation time and expense.

What We Suggest For A Successful  Mediation:

WRITTEN SUMMARY. Before a mediation convenes, we recommend that a brief written summary of the case be submitted by each party several days in advance.  In personal injury cases, the summary should discuss the issues of liability, focusing on the key evidence in support of the party’s position, and on damages, discussing for example, such issues as the extent of disability, casual relationship, and the extent of special damages or economic loss.  If the issues of liability or damages can be best highlighted by attaching pertinent portions of pleadings, medical records, statements, or other documents, you may wish to do so in advance of the mediation to assist your Mediator.

PREPARATION. We also suggest that all parties and their counsel be prepared by a carefully reviewing their case before the mediation conference.  Although mediation is informal, being prepared to discuss the facts of your case in detail always assists in the process by saving time and saving money.  Identify and pull out all documents, or portions thereof, that may be helpful to show your mediator so as to avoid wasting time at the mediation by having to pull through a large file or request materials from your office. 


THE PARTIES TO THE DISPUTE MUST ATTEND. In case you do not know, all parties including any insurance representative or any individual with needed full settlement authority, must appear at the mediation. The chance of settlement increases dramatically if everyone appears on time and in person.  We recommend that each party confirm with the other party that all will be in attendance.  In the rare circumstance where a party is unable to attend in person, their representative should advise all parties of this before the mediation.  At times, due to geography or other circumstances, a party or person whose authority is needed to settle the case may be unavailable. In such cases, with the consent of all parties, they may be able to participate by telephone or video conferencing during the course of the mediation session.
 
What to Expect at the Mediation:

JOINT  MEETING.  At the start of the mediation session, our mediation sessions start by bringing all the parties, their counsel and/or representatives together in a large conference room for a joint session.  We will describe the process and emphasize our impartiality and that all communications made at the mediation are confidential.  The parties, typically through their attorneys or authorized representatives, are given an opportunity, in an uninterrupted manner, to explain the facts and key issues in the case from their standpoint and also may state where the parties are in terms of any settlement discussion that may have taken place before the mediation. It may be advisable, to reserve some settlement discussions until in private caucus with your mediator. 

PRIVATE  MEETINGS.  Typically, after a joint session, we will have private meetings with each party to explore the positions and  that party’s needs for a successful mediation.  These private meetings are also confidential, and as such, the parties may find it easier or more appropriate to discuss certain issues and/or their willingness to show flexibility in these private sessions.  These private discussions will be kept in confidence by the mediator, and only those statements that a party specifically authorizes  us to share with the opposing party will be shared with any other party.  This confidential information is critical to  us since with this information  we can begin to focus in on the true needs of the parties and possible terms or proposals for  a resolution.

TOOLS OF THE MEDIATOR.  We are trained to deal with many issues that may arise at mediation, including intense emotions, lack of trust, and communication failures.   It is likely that we will discuss with each party their understanding of the realities and alternatives facing them, for example, if they decide to go to trial, what the chances are of a verdict in their favor, what is a likely award, how long it would take to get to trial, and how much it would cost financially and emotionally to go through trial.   We will also focus each party on any weaknesses they may have in their case.  Some parties are resistant to hearing such messages, even from their attorneys, and may have overly optimistic assessments of trial results are expected should they decide not to reach a resolution.  We are very effective as impartial and experienced neutrals in dealing with this optimism.

We never express our opinion about the merits or value of the case, particularly early on in the mediation session, which distinguishes a non-binding mediation from a case evaluation or arbitration. We are experts in the process of exploring a resolution of the dispute in whole or in part.  However, we will often direct questions to the parties which may inspire considering resolution most often in private caucuses, such as “What would your response be if the defendant expressed willingness to pay $XXXXX and dismiss their counterclaim?”

CONFIDENTIALITY. Once the mediation conference is convened, parties are reminded that  any communication made during the course of the mediation relating to the subject matter being mediated shall be a confidential communication and not be  disclosed in any subsequent judicial or administrative proceeding.  This is to assure that if the case does not settle, all mediation communications including their statements, offers, demands or other negotiations are not disclosed to a judge, jury, or arbitrator or anyone else not attending the mediation conference. Florida Statutes, Section 44.405 provides “all mediation communications are confidential.  There are severe penalties available for violation of this confidentiality privilege. 

SETTLEMENT OR OTHER ADR ALTERNATIVES.  If settlement is reached at a mediation session,  we always advise the parties to sign mediation settlement agreements and/or written releases while all parties are present at the mediation If the parties desire to use a more complex release, we recommend that a mediation settlement agreement be signed with all of the essential terms included and also reflect that the parties intend to execute a separate release and settlement agreement however if a separate release and settlement agreement is not entered into, the mediation settlement agreement shall govern the resolution.

Statistics show that the vast majority of cases (approximately 85% to 90%) submitted to mediation reach settlement.  If settlement is not reached but progress has been made, it may be suggested that the parties return again for a second mediation.  In many cases where the differences of the parties have been significantly narrowed but settlement not reached, additional discovery may be needed to close the remain issues.  A second mediation can assist in closing those remaining issues.

At the conclusion of the Mediation Conference our Mediator will file a Mediation Report which will alert the Court and all interested parties that (1) all issues have been resolved, or (2) some issues have been resolved, or (3) no issues were resolved and the Mediation Conference ended in an impasse.