So you have retained an attorney to litigate your dispute, and now the attorney is saying that you need to mediate the case. What does this mean? Mediation is an informal settlement process. Typically, the court or the parties will select a mediator. The mediator is usually an attorney from the local area or an attorney with knowledge of the area of law involved in your case. Mediators must be certified in Florida. Once the mediator is selected, the parties schedule the mediation. Mediations may last a full day or longer. The mediator will charge an hourly fee that is commonly split among the parties to the mediation.
Once the mediation is scheduled, the mediator will file a notice of mediation with the Court and send a letter to all of the parties. The letter will request a brief summary of the issues in the case, important documents, etc. This summary is held in confidence by mediator. On the day of mediation, the mediator will assemble all of the parties into a single room. This is known as the "joint session." The mediator will explain his role during the joint session. The mediator's role is to facilitate a settlement by going back and forth between the parties and negotiating a settlement by discussing the strengths and weaknesses of each party's case.
Next each party, gets to give a brief opening statement. Some lawyers use the opening statement to explain the weaknesses of the opposing party's legal position and the strength of his or her client's position. Other lawyers, will not even give an opening statement and choose to simply proceed straight to the negotiation. There are advantages and disadvantages to each strategy. For example, if the other side thinks that their case is rock solid, then discussing weakness of their legal position may be helpful. However, if everyone is aware of the strengths and weaknesses, you could be ahead to just begin the negotiations without disparaging the other party's case. This is a judgment call that is more of an art than a science.
After the joint session and opening statements, the parties split up and move to separate rooms. The mediator will then start with one of the parties to establish a starting position for negotiation. For example, a Plaintiff may tell the mediator that they will settle for $150k. The mediator will then take the $150k offer to the defendant, and continue back and forth until a settlement is reached or the parties come to an impasse that prevents settlement of the case. All statements at mediation are inadmissible to show liability. In addition, a party is always free to accept or reject a settlement at mediation.
Above is a brief description of the mediation process. However, we have not determined why parties must mediate. The truth is that in civil cases the parties are usually ordered to mediation by the Court as a matter of course. Many courts will not even set a trial date until mediation has occurred. Mediation, allows the parties to fashion their own settlement, instead of having a judge or jury do it for them. This allows the parties to allocate risk in a more efficient manner. For example, if you know that you are claiming $100k in damages in a case, but that you may have been partly to blame for some portion of the $100k in damages; you may accept $65k to settle the matter at mediation. In Court, there is a risk that you may receive nothing.
The other reason why courts require mediation is to avoid costly and time consuming trials. The vast majority of cases are settled or disposed of before trial. Mediation is a means by which the court can require parties to address weaknesses in their lawsuits and seriously consider the unknown results of a prospective trial. Accordingly, by resolving those cases that can be resolved at mediation, the case load of the court is reduced and only those cases that are truly disputed require a full trial.