WHAT IS MEDIATION?
Under Florida law, mediation is a process in which a neutral third person, known as a mediator, helps two or more parties attempt to resolve a dispute.  The mediator does not act as a judge and does not decide who wins or loses.  Instead, the mediator helps the parties identify the issues, communicate with one another, consider possible solutions, and negotiate toward an agreement.

Florida law specifically describes mediation as an informal and nonadversarial process intended to help the parties reach a mutually acceptable and voluntary agreement.  Most importantly, the decision-making authority remains with the parties.

This means that a mediator generally cannot force either side to settle.  The mediator's job is to facilitate negotiations rather than impose a solution.

IS MEDIATION REQUIRED IN FLORIDA?
Mediation can be either voluntary or required.

Parties may voluntarily agree to participate in mediation before filing a lawsuit or while a case is pending.  In other situations, a court may order the parties to attend mediation.

Florida Statutes Chapter 44 governs mediation and other forms of alternative dispute resolution.  Florida law provides for court-ordered mediation in certain civil cases, subject to applicable statutes and court rules.  For example, Florida courts may refer qualifying civil actions involving monetary damages to mediation, subject to statutory exceptions and other requirements.

An important distinction is that being required to attend mediation does not necessarily mean that a party is required to settle.  Florida's mediation system is based on the principle that the parties control the outcome.

WHAT DOES A MEDIATOR DO?
A mediator is a neutral and impartial third party.  The mediator does not represent either side and generally does not make decisions for the parties.

The mediator may:
 

• Help the parties communicate more effectively.

• Identify the issues that need to be resolved.

• Help the parties understand areas of agreement and disagreement.

• Explore possible settlement options.

• Facilitate negotiations.

• Help the parties evaluate alternatives.

• Encourage problem-solving.

• Assist the parties in reaching a voluntary agreement.

Florida's mediation rules emphasize self-determination, fairness, flexibility, confidentiality, communication, negotiation, and problem-solving.

A mediator also must maintain neutrality and should not coerce a party into accepting a particular outcome or provide legal advice to one side.​​

WHAT HAPPENS DURING A FLORIDA MEDIATION?
The exact process can vary depending on the type of case and the applicable court rules, but a mediation commonly follows several stages.

1.  The Parties Attend Mediation

The parties and other appropriate participants attend the mediation, either in person or, when permitted, through telephone or video conferencing.

In a court-ordered mediation, attendance requirements may be governed by the applicable court rules and the court's order.

2.  The Mediator Explains the Process

The mediator typically explains the mediator's role, the purpose of mediation, and the expectations for the session.

The mediator does not act as the judge and does not determine which party is correct.

3.  The Parties Discuss the Dispute

The parties have an opportunity to explain their positions and identify the issues that are preventing settlement.

The mediator may speak with everyone together or meet privately with individual parties in separate sessions, sometimes called caucuses.

4.  Negotiation Takes Place

The mediator helps the parties explore potential solutions.  Settlement discussions may involve compromises concerning money, property, services, schedules, responsibilities, or other terms depending on the nature of the dispute.

 

5.  The Mediation Ends

 

Mediation may result in a complete settlement, a partial settlement, or no agreement.

 

Under Florida law, a mediation may end when the parties sign a settlement agreement, when the mediator declares an impasse, or when the mediation is otherwise terminated under applicable law, court rules, or court order.

​

IS MEDIATION CONFIDENTIAL IN FLORIDA?​

Confidentiality is one of the significant features of mediation in Florida.

​

Florida has a Mediation Confidentiality and Privilege Act, found in sections 44.401 through 44.406 of the Florida Statutes.  The law defines mediation communications and provides protections concerning the disclosure and use of certain communications made during mediation.

​

However, confidentiality is not absolute.  Florida law contains exceptions to mediation confidentiality, so parties should not assume that every statement connected with mediation is protected under every circumstance.

​

Because confidentiality can have important legal consequences, parties involved in a significant dispute should discuss the applicable rules with their attorney before making statements during mediation.

​

WHAT HAPPENS IF THE PARTIES REACH AN AGREEMENT?​

If the parties successfully resolve their dispute, the terms are generally documented in a written settlement agreement.

​

The settlement agreement can address the specific obligations that each party has agreed to undertake.  Depending on the nature of the case, the agreement may be submitted to the court for approval or incorporated into a court order.

​

Once a legally enforceable settlement has been reached, the parties may have obligations to perform under that agreement.  This is one reason it is important to understand the terms of a settlement before signing it.

​

WHAT IF MEDIATION DOES NOT RESULT IN A SETTLEMENT?​

Mediation does not always result in an agreement.

​

If the parties cannot reach a resolution, the mediator may declare an impasse, meaning that the parties have been unable to settle the dispute through mediation.  Under Florida law, an impasse is one way in which a mediation may conclude.

​

If the case is already in litigation, the lawsuit generally continues unless the parties otherwise resolve it.  The fact that mediation was unsuccessful does not mean that either party automatically loses the case.

​

WHAT TYPES OF CASES CAN GO TO MEDIATION?​

Mediation is used in many different types of disputes in Florida.  Depending on the circumstances and applicable rules, mediation may be used in matters involving:

​

• Personal injury claims

• Contract disputes

• Business disputes

• Property disputes

• Insurance disputes

• Family-law matters

• Divorce and parenting disputes

• Employment-related disputes

• Construction disputes

• Real-estate disputes

• Small claims and other civil matters

​

Florida law specifically recognizes several categories of mediation, including circuit court mediation, county court mediation, appellate court mediation, and certain dependency and family-related mediations.

​

The rules and procedures can differ substantially depending on the type of case, so the fact that mediation is available in one type of dispute does not necessarily mean that the same procedures apply to another.

​

MEDIATION VERSUS GOING TO TRIAL​

One of the primary differences between mediation and trial is who controls the outcome.

​

At trial, a judge or jury makes decisions according to the applicable law and evidence.  In mediation, the parties themselves decide whether to settle and what terms they are willing to accept.

​

Mediation can also provide greater flexibility.  Rather than being limited to the remedies a court can award, parties may be able to negotiate creative solutions that address their particular circumstances.

​

Mediation may also save time and expense compared with taking a dispute through a full trial, although there is no guarantee that mediation will be less expensive or that a settlement will be reached.

​

THE ROLE OF ATTORNEYS IN MEDIATION​

A person participating in mediation may benefit from having an attorney, particularly when significant legal rights, money, property, or other important interests are involved.

​

An attorney can help a client:

​

• Understand the legal issues involved.

• Evaluate potential settlement terms.

• Prepare for negotiations.

• Determine an appropriate settlement strategy.

• Review a proposed settlement agreement.

• Explain the consequences of accepting or rejecting an offer.

​

The mediator, by contrast, must remain neutral and cannot serve as the advocate for one of the parties.

​

FLORIDA-CERTIFIED MEDIATORS​

Florida has established standards concerning mediator qualifications, certification, professional conduct, discipline, and training.  The Florida Supreme Court is authorized to establish minimum standards and procedures for mediators appointed under Florida's mediation statutes.

​

Florida's court system also provides resources for locating certified mediators and addressing complaints concerning mediator conduct.

​

When selecting a mediator, parties may want to consider the mediator's certification, experience, background, familiarity with the type of dispute, and ability to remain neutral.

​

THE BENEFITS OF MEDIATION​

Mediation can offer several potential advantages:

​

Control.  The parties, rather than a judge, determine whether to settle and what the settlement will contain.

​

Flexibility.  The parties can sometimes develop solutions that would not be available through a traditional court judgment.

​

Privacy and confidentiality.  Florida law provides important confidentiality protections for mediation communications, subject to statutory exceptions.

​

Efficiency.  Resolving a dispute through settlement may avoid some of the time and expense associated with prolonged litigation.

​

Preservation of relationships.  Because mediation focuses on negotiation and problem-solving rather than simply determining a winner or loser, it may be useful when the parties need to maintain a business, family, professional, or other ongoing relationship.

​

Opportunity to be heard.  Mediation gives each side an opportunity to explain its concerns and participate directly in developing a possible resolution.