Frequently Asked Questions

 
Mediation is a method for resolving legal issues and disagreements between the parties themselves and outside of any litigation. In mediation, a mediator, who is a neutral third party, helps guide the disputing parties toward a solution agreed to by all parties. Mediation is an informal and flexible process that allows the parties to work together, with the help of a mediator, to resolve their differences and free themselves from the expensive, lengthy and aggravating process of litigation and trial. 

In Florida, mediation is a requirement for civil cases assigned to the Circuit Courts and is typically ordered by the court as a prerequisite to take place before the parties are  allowed to proceed to trial. As a practical matter, mediation is usually a final attempt on the part of the parties to reach a compromise and avoid the uncertainties, risks and expenses that always accompany a trial in court. 

Mediation provides the parties an opportunity for an immediate and cost-effective resolution to their lawsuit. If mediation is successful and the parties reach agreement, the mediator will assist the parties in completing and signing a binding written settlement agreement right then and there. The mediator will also immediately report the parties’ settlement to the court, so that all legal proceedings related to the parties’ lawsuit are halted or cancelled. 

Mediation helps the parties reach a voluntary agreement through empowerment and self-determination. In mediation, decision-making authority and control over settlement terms always rests entirely with the parties. The mediator assists the parties making those decisions by identifying issues, fostering joint problem solving and creating and exploring settlement alternatives, but the parties make all the decisions. 

Mediations are typically scheduled for a half-day conference (3 hours) or a full-day conference (6 hours).

The parties should make their selection based on their best estimate of the time that will be needed to conduct the conference. If the mediation is not completed within the time reserved and more time is needed to complete the mediation conference, the conference can be continued to be completed at a later date and time.

Mediation is an informal and non-adversarial proceeding. In mediation, the mediator guides the parties through a collaborative process toward settlement. The parties are encouraged to cooperate and brainstorm possible solutions as they work together toward the common goal of settlement, as opposed to treating each other as adversaries. Mediation is a fair and impartial proceeding. The mediator does not have any relationship with any party to the lawsuit and does not have any personal interest in the outcome of the parties’ lawsuit. The mediator also does not favor or desire any particular outcome from the mediation. The mediator will advance any voluntary agreement made by the parties in good faith, regardless of the terms. The parties typically split the cost for the mediation equally. 

Mediation is confidential. Mediation is confidential and nothing disclosed in mediation can be disclosed to any third-party, including the judge, except under very limited circumstances where disclosure would be permitted or required by law. This confidentiality is in place to provide the parties the freedom to explore settlement

possibilities and options without the worry that a concession or offer made within the mediation can be used against the party outside and after the conclusion of the mediation.

Mediation is effective. The process helps parties better understand the strengths and weaknesses of their own positions and their risks of having the issues and disagreements decided by a judge or jury. It also offers the parties the opportunity to avoid the considerable expense and delay associated with a lawsuit and eliminates the possibility of further post-trial legal complications, such as those related to a bad faith action or appeal. Mediation is effective where all parties want to reach agreement and avoid trial and are willing to endeavor to find middle ground and make concessions to resolve the disagreements between the parties. 

Mediation is risk free. Should the parties fail to settle their case at mediation, the court will likely continue to move the lawsuit along its trial course but will not typically impose any penalty or negative action on the parties. If mediation is not successful in securing a complete settlement for the parties, the parties are free to continue in efforts to negotiate a settlement, participate in another mediation or proceed with litigation and trial. 

Prior to your mediation, your mediator will file a notice for the mediation with the court to inform the court of the mediation and will serve a copy of the notice on all parties. The mediation notice will contain important information regarding your mediation. 

Mediation is typically conducted during a conference with all parties and the mediator in attendance. Any parties represented by counsel in the litigation are usually represented by their attorney during the mediation. The mediation conference is typically conducted remote by videoconference, but it can also be conducted with everyone in attendance in person, if desired. 

At the beginning of the mediation conference, your mediator will explain the mediation process to all parties. After your mediator has finished his/her opening remarks, he/she will typically allow each party to make a presentation of the issues of contention and disagreements in the lawsuit, as that party perceives them.

Once all parties have been afforded equal opportunity to provide their presentation to your mediator, your mediator will usually divide the parties into “caucus”. In caucus, all parties are separated from each other. Your mediator will then meet with each party separately and outside the presence of all other parties. During these discussions in caucus, your mediator will likely help identify and discuss the pros and cons of taking the lawsuit to trial, gather information to potentially take to the other side, and obtain and relay monetary settlement offers. In these separate caucus room, anything a party tells your mediator is confidential and will not be disclosed to other parties unless the party gives your mediator permission to share it with other parties. The confidentiality is in place so that a party can freely and honestly discuss the pros and cons of the case and possible concessions for settlement without any reprehension about those discussions being used against the party at a later time.

If the parties reach complete agreement while in the mediation, your mediator will prepare a simple mediation settlement agreement documenting the terms of the parties’ agreed settlement and the parties will sign the mediation settlement agreement. The mediation settlement agreement will likely require the parties to provide some future performance, such as providing a full settlement release or providing payment of an agreed upon monetary amount. Your mediator will submit a report to the presiding court, informing the court that the case is resolved through settlement and advising that the lawsuit’s trial setting and all other litigation activities involving the lawsuit can be cancelled.

If the parties fail to reach complete agreement in the mediation, your mediator will declare an “impasse”, meaning a lack of agreement or deadlock, and will submit a report to the presiding court, informing the court that the parties were unable to settle the lawsuit and will need to proceed with litigation and trial.

Arbitration is a process whereby a neutral third person, called an arbitrator, or a panel of more than one arbitrator, considers the disputed facts and arguments presented by the parties in the lawsuit and renders a decision. Unlike mediation, arbitration is an adversarial process and the arbitrator typically determines a winner and a loser on the disputed issues. The arbitration can be binding, meaning that the arbitrator’s decision is final and cannot be set aside by a court under typical circumstances. Alternatively, the arbitration can be non-binding, where the arbitrator’s decision is reduced to writing and is final unless a party objects to the decision and requests a trial de novo within the time frame provided by the court. 

A mediation-arbitration is a procedure whereby the parties to a dispute agree to mediate a dispute with an understanding that, if the lawsuit is not settled through mediation, the proceeding will convert to an arbitration and the arbitrator will render a decision on the disputed facts and arguments. The parties will agree that the same person will serve as both mediator and arbitrator. Similarly, an arbitration-mediation is a procedure whereby the parties present disputed facts and arguments to the mediator with the understanding that, once the presentations have concluded, the parties will proceed with mediation through its conclusion. If the lawsuit is not settled in the mediation, the proceeding will then convert to an arbitration and the arbitrator will render a decision on the disputed facts and arguments. The parties will agree that the same person will serve as both mediator and arbitrator. 

Your mediation or arbitration will be conducted in English. Diamond Mediation does not provide interpretation services. If any party or participant does not speak or understand English, it is the responsibility of that party or participant to secure his or her own interpretation service for the mediation. 

In accordance with Americans with Disabilities Act of 1990, all persons who are disabled and who need special accommodations to participate in the proceeding because of disability should notify Diamond Mediation immediately by either email to office@diamondmediationfl.com or telephone to (305) 444-1701.

If you have any concern about safety or security during a live mediation conference, for any reason, you should notify Diamond Mediation immediately by either email to office@diamondmediationfl.com or telephone to (305) 444-1701. 

Mediations cancelled within 72 hours of the scheduled proceeding are subject to a cancellation fee.