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DAVID IS SUPREME COURT CERTIFIED TO CONDUCT FORMAL MEDIATIONS THROUGHOUT THE STATE OF FLORIDA. 

  

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What is mediation?

Mediation is a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person (called a mediator). A mediator is not allowed to decide who is right or wrong or to tell you how to resolve your dispute.  In mediation, you can try to find solutions that make sense to you and the other person in the dispute to resolve some or all of your concerns. 

While the goal is to try to work something out, you may decide it would be better for you not to come to an agreement. Sometimes emotions may be driving the dispute which can make talking to the person or party with whom you are in a dispute difficult.  A mediator can assist you in easing the way for communication. The mediator is there as a neutral person to help you focus on solving your dispute; however, the mediator is prohibited from providing therapy, counseling or legal advice.

What happens if I don't come to any agreement in mediation?

Mediation is used by the courts; additionally there are state and local agencies as well as individuals and corporations which use mediation.  When it is used by the court, it is called a “court-ordered mediation.”  If you are court ordered to mediation and you are unable to settle your differences, you will go back to court and the judge (or jury) will make a decision for you. 

What are some advantages to mediation? 

  1. Mediation provides an opportunity to talk with someone who is impartial.  

  2. The issues in your dispute are not decided by someone else (self-determination).

  3. What you say in mediation is confidential.

  4. The mediator can help you overcome obstacles to communication with the other person or party in your dispute.

  5. Mediation agreements are enforceable.

  6. A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute.

  7. Mediation is not a trial nor an arbitration.

  8. Mediation can save time and costs.

  9. You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court.

  10. Mediation is an opportunity to gain a greater understanding about why the dispute arose.

 

  1. Mediation provides an opportunity to talk with someone who is impartial:    

  2. The issues in your dispute are not decided by someone else (self-determination):

    In mediation, you are the “decision maker.”  The mediator helps you discuss your concerns, but cannot make decisions for you.

  3. What you say in mediation is confidential:

    Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act,sections  44.401 – 44.406, Florida Statutes).  The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either a) the parties agree it will apply or b) it is mediated by a certified mediator. Although not required, sometimes the mediator may ask the parties to state in writing that they will keep everything confidential. The goal is to allow you and anyone at mediation and their lawyer, if any, to talk about legal and non-legal issues without fear of others (including the judge) hearing about it. While most things said during mediation will be confidential, there are some exceptions. (Three main examples of these exceptions are child abuse, elder/vulnerable adult abuse, or anyone saying that they are committing or planning a crime. If you are interested in all the exceptions, see section  44.405(4)(a)(1) – (6), Florida Statutes.A signed mediated settlement agreement is not confidential unless the parties agree it will be confidential and the law allows the agreement to be confidential. Instead, the agreement may – and in some cases MUST – be put in a court file.

  4. The mediator can help you overcome obstacles to communication with the other person or party in your dispute:

    Even if you have already tried to talk it out or negotiate with the other or party, a mediator can help you and the other party listen to each other and keep you focused. A mediator is there to help both sides communicate and explore possible solutions.  If you and the other party get stuck, the mediator can sometimes help restart the conversation in a new way and help everyone take another step forward. 

  5. Mediation agreements are enforceable:

    If you reach an agreement in mediation, that agreement must be put into writing and signed by the parties.  The written agreement becomes a legally binding document (contract), which is enforceable by the court.

  6. A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute:

    Mediation provides you with an opportunity to be creative with your solutions.  If both sides agree, you can reach a settlement agreement specific to your individual needs.  Mediation is different from litigation (a trial), where the judge or jury makes a final decision.  With mediation, both sides can “win,” this is called a “win-win” situation.

  7. Mediation is not a trial nor an arbitration:

    Mediation is neither a trial nor an arbitration.  In a trial, the parties present evidence and argument so a judge or jury decides the outcome of the dispute.  Likewise, in arbitration, the parties present evidence and arguments so an arbitrator or panel of arbitrators decides the outcome of a dispute. In mediation, the mediator assists the parties as they talk about their dispute to help them find and explore mutually acceptable resolutions of their dispute.  If you reach an agreement at mediation, you do not have to go to trial or arbitration. 

  8. Mediation can save time and costs:

    Since mediation is a discussion between the parties, it can be much quicker than the formal trial process. Thus, it may also cost less than going to court - in both dollars and stress. 

  9. You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court: 

    If you resolve the dispute in mediation, you are not gambling on what the judge or jury might decide. In a trial, the final decision will be made by the judge or the jury (if there is a jury). It is uncertain what decision will be made at trial, but you will be bound by that decision whether you agree with or like the outcome of the trial. At mediation, the parties make the decisions.

  10. Mediation is an opportunity to gain a greater understanding about why the dispute arose:

    In mediation you are talking with each other, the mediator, and your attorney if you bring one.  This interaction promotes a better understanding of the actions that lead to the conflict.  Sometimes when the parties understand the “why” of the other person’s actions, it helps create a desire to resolve the dispute.

 

What is a mediator?

A mediator helps you talk with the party with whom you are having a dispute. The mediator does not make decisions for you. The mediator is a neutral and impartial guide to help you come up with possible solutions, stay on track, and clarify areas of agreement and disagreement.  The mediator may help you and the other party see the conflict from each other side’s point of view.

Many kinds of people can be mediators: mental health or business professionals; attorneys; educators; and others. To become certified by the Florida Supreme Court, a mediator must meet many requirements. There are ethical standards for mediators adopted by the Florida Supreme Court.  See the Standards of Professional Conduct in Part II of the Florida Rules for Certified & Court-Appointed Mediators.

A mediator is not there to provide therapy, counseling, business or legal advice. While mediation is a good place to recognize the emotions that may be driving the dispute, the mediator is there as a neutral to help you focus on resolving your dispute.

What happens in mediation?

Court-ordered mediation must begin with an introduction by the mediator explaining the process and the role of the mediator.  Among other things, the mediator should explain that the parties make the decisions, not the mediator. The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concerns.  If your lawyer is with you at mediation, these opening remarks may be made by you, your lawyer, or both of you.  After these initial procedures, how the mediation is conducted varies.  The mediator usually will meet with both parties together to discuss the issues to help you work out your differences.  The mediator may also meet with each party privately.  This separate meeting is called a caucus.  Generally, unless you give the mediator permission to repeat what you say in caucus, the mediator is prohibited from sharing what is discussed. 

If you are represented by a lawyer, you and your lawyer will decide how the two of you will interact during the mediation.  Some lawyers instruct their clients not to talk during mediation.  If this is your decision with your lawyer it is fine; however, it is important for you to know that you are allowed to speak to the mediator at any time.

Eventually, the mediation will end in one of three ways, either: 1) the parties reach an agreement as to some or all issues - all parties (and their lawyers if present) must sign the agreement; 2) the mediator declares an impasse (because you, the other party, or both are unwilling to continue discussing resolution); or 3) the mediator, with the parties’ consent, continues the mediation session by adjourning for the day.  If the mediator declares an impasse as to some or all issues, then you and the other party will have to go back to court to have the judge or jury (if there is one) decide your case.

Glossary

PLEASE NOTE:  These definitions are provided to assist the reader in understanding the terms used in this document.  They are not “legal” definitions; rather, the terms are explained in plain English to attempt to ensure the greatest level of understanding.
 

  • Caucus

A private meeting at a mediation between the mediator and one side.  “Information obtained during caucus may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.” [See rule 10.360(b), Florida Rules for Certified and Court-Appointed Mediators].

  • Florida Supreme Court Certified mediators

In Florida, individuals who have completed a Florida Supreme Court certified training program for mediation and satisfied other requirements may designate themselves as “Florida Supreme Court certified.” As of October 2014, there are five certification areas: county; circuit; family; dependency; and appellate.

  • Confidentiality

Keeping discussions and information private. With only a few exceptions, mediations are confidential. Unless one of the exceptions applies, you may only discuss what happened or was said at mediation with your attorney, another person who attended the mediation, or that person’s attorney.

  • Impartiality   

Not showing any favoritism or prejudice.  A mediator must remain impartial at all times and must not show a preference for one party or another. 

Other terms you may encounter:

  • Defendant/Respondent

The person being sued.  Depending on which court you are in, these terms may differ.

  • Guardian ad Litem

A specially trained person appointed by the court to represent the interests of a minor child or incompetent adult party. The guardian acts on the child’s or adult’s behalf, making sure their needs are considered.

  • Judgment

A final order entered by a judge at the end of a lawsuit.  Frequently, a judgment will determine the amount of money owed by one person to another, but a judgment may also include other items.  A judgment is usually not confidential and may be obtained from the court records.  A judgment is enforceable by the court.

  • Plaintiff/Petitioner/Claimant

The person who is suing.  Depending on which court you are in, these terms may differ.

  • Pro Se

A person who does not have a lawyer and is representing themselves.