Mediation is a way for two or more people to talk and try to find a solution to a problem without going to court. It’s like having a frank discussion where everyone works together to come up with a plan that everyone agrees on. The mediator is just there to help the people talk and find a way to move forward.

Mediation is a great option for people who want to avoid a court battle but still want to get a resolution. It’s a more flexible and creative way to solve problems, and it can help people save money and time. Plus, it’s a more respectful and collaborative way to deal with disagreements.

Benefits of Mediation

The best way to resolve conflicts is usually through a reasonable settlement. Mediation is private, quick, and affordable. It might not work in two cases: (1) One or both parties have an incentive to delay the resolution (money or emotions), or (2) One or more parties don’t understand the merits of their positions. But if the parties are willing to listen, educating them about their positions can happen during mediation.

Mediation is always voluntary unless it’s ordered by the court after a lawsuit is filed. Settlements are always agreed upon. Mediation can lead to a settlement agreement. But an oral agreement reached at mediation isn’t legally binding. The agreement needs to be signed by both parties and their lawyers. Even if the lawyers don’t sign, the agreement signed by the parties can still be enforced.

Mediation in Contracts

If a contract states that mediation is a condition to filing a lawsuit, filing a complaint before mediation was too early and was dismissed. Parties can put in their contracts that mediation must happen before using the courts or arbitration.

Court-Ordered Mediation

Since 1987, Florida has had a statute that allows state courts to order cases to be sent to mediation. Court-ordered mediations are pretty common, with reports saying they happen in around 70% to 80% of cases. Usually, they happen right before trial, after most of the discovery is done. Knowing what the other side knows can help people reach a settlement.

Court-ordered mediations are governed by Florida’s Civil Procedure Rules and the rules for certified and court-appointed mediators. In mediation, the parties usually must send someone with the power to settle the case.

If someone doesn’t show up to a mediation without a good reason, the court can punish them, like by paying the mediator and their lawyer’s fees.

Now, here’s the interesting part: there are no laws or rules that say the parties must negotiate in good faith. This came up in a car accident case in 1992, and the court said they could do it.

The plaintiff filed a motion to compel mediation less than three months after the defendant was served with process. At the mediation, the defendant refused to offer more than $1,000 because it hadn’t taken the plaintiff’s deposition or gotten an independent medical examination. After the plaintiff’s motion, the trial judge ordered sanctions against the defendant.

However, the appellate court overturned the trial judge’s decision. They found that sanctions are only available for failing to attend mediation or not following a mediated settlement agreement. The district court pointed out that Florida Statute § 44.1011(2) defines mediation as an informal and non-adversarial process aimed at helping parties reach a mutually acceptable and voluntary agreement. They emphasized that mediation is not meant to force parties to settle cases they want to go to trial before a jury. There’s no requirement for a party to make an offer at mediation, let alone offer what the other party wants to settle.

In one case, the court ordered mediation and made it clear that representatives with full settlement authority must attend in person unless excused by the court. They also stated that failing to appear could result in sanctions.  However, one of the parties and their lawyer didn’t show up to mediation and the lawyer was charged attorney fees and costs as a result.  An order that forces mediation is a non-final order that can’t be appealed.

Confidentiality in Mediation

Mediation is always confidential. This means that what is said in mediation cannot be shared with any third parties, including the court-absent exceptional and rare circumstances. In a pre-suit mediation, the agreement to mediate should say that what’s said during mediation can’t be used in court. There’s a Florida law that says what’s said in court-ordered mediations can’t be used in court, even if the dispute is settled. After a court-ordered mediation before trial, the plaintiff sent an email to at least 44 people about what happened in the mediation, including what each person said and what they offered. The defendant asked the court to dismiss the case. The plaintiff admitted what he did, but he said the dismissal was too harsh. The court didn’t agree. The case was dismissed.

To make things clear, the parties can agree that the mediation will follow the rules for mediation set by the Florida Supreme Court, Florida Rules of Civil Procedure 1.700 to 1.750, and Florida Rules of Certified and Court-Appointed Mediators 10.010 to 10.290. 

Enforcing a Mediated Settlement Agreement

If parties reach a mediated settlement and put it in writing, the courts can enforce it. But if they reach an agreement at mediation but don’t put it in writing, the courts can’t enforce it.

While it would be great to make a full settlement agreement at the end of mediation, often the parties (or their lawyers) don’t.

Lawyers often prefer to sign a short agreement first, with the understanding that a longer one will come later. If you want to be sure you have a valid agreement, there should be a written document that says what’s agreed on at the end of mediation. It’s been said that sometimes, after mediation, people still have disagreements and need to get the final agreement done. To avoid this, the short agreement should include the important terms so that it can be enforced. The short agreement could also say that if the parties don’t agree on the final agreement, the mediator will be the judge who decides any disputes. Of course, this depends on the mediator agreeing to it. 

Ormond Beach Foreclosure Defense Lawyer

Choosing an experienced attorney for foreclosure defense is crucial. Andrew J. Pascale, a foreclosure lawyer in Ormond Beach, Florida, can offer valuable advice. Contact him at 877-667-1211 to discuss your case. Note: This blog is informational, not legal advice.