A mediation conference is something that many of my personal injury and workers’ compensation clients will experience in their case. Often times, a person involved in a car accident or work accident has not been involved in a mediation and is uncertain as to what will happen. This article will discuss what mediations are and the process of mediation.
Mediations have become very prevalent in Florida’s court system. Before we can get a jury trial date in a personal injury case, the case must go through the mediation. Similarly, before going before the Judge of Compensation Claims after a workers’ compensation accident, mediation is required. This requirement is so the parties can attempt to resolve the issues without further delay and costs.
What is Mediation?
Mediations in Florida are governed by Chapter 44 of the Florida Statutes. Florida Statute 44.1011(2), defines mediations as “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.”
There are many key phrases in that definition that need explanation. As you can see, there is no mention of a judge or jury in mediation. Rather, there is a mediator. The mediator is typically an attorney who is not acting on behalf of either party during the mediation. I refer to the mediator as a “communication facilitator” before she or he passes information back and forth between the parties. Also, the definition highlights that mediation is “informal and nonadversarial.” This means that mediations typically happen in law offices and not courtrooms. The formalities of the civil rules of procedure are not enforced. However, I respectfully disagree that mediations are nonadversarial. There is an adversary on the other side trying to discredit the opponent’s positions and argument. Lastly, the definition discusses a “voluntary agreement.” Unlike a jury trial or Judge’s ruling, the parties can “agree to disagree” at mediations and not reach a conclusion to the case. No one at mediations can force a settlement or make a final ruling. However, if the case does proceed to trial or Final Hearing, ultimately the final decision will be made by the jury or judge.
Who Attends Mediation?
The parties to the dispute must show for mediation. In addition, if they have attorneys, the lawyers must show for mediation. Although they are technically a party to the lawsuit, the insurance adjuster for the party will likely show for mediation instead of the alleged at-fault party. This is because it is the insurance adjuster who decides what monetary settlement offers will be made to resolve the issues. Family members of the party are able to attend as well. This is particularly helpful in situations where the party cannot make decisions without the family member. Lastly, the mediator certainly attends the mediation.
If a party fails to appear at a scheduled mediation without first having obtained the court’s permission, sanctions may be imposed.
The Mediation Process
Although every mediation is different, most follow a similar routine. In the beginning of mediation, the mediator discusses the mediation with the parties. This discussion includes explaining the mediation process, describing the role of the mediator and the fact that the mediator has no authority to impose a resolution or make decisions, and explains that communications are confidential with certain exceptions.
Thereafter, each side presents their case to the other side and mediator. Sometimes, this is the first time that all the parties are together to discuss their respective sides. These opening statements should be brief and simply provide an overview of the case and the party’s position. Sometimes, overzealous attorneys try to bully the other side during these opening statements. Personally, I find these tactics not helpful in getting the issues resolved.
After the opening statements, the parties typically break into separate room so the mediator can talk to each party privately. These are called caucuses. During these discussions with the mediator, settlement offers and demands are often relayed with an exchange of information or documentation. A mediator’s role in these caucuses is to guide the process and gently assist the parties in breaking down the barriers to resolution.
If the parties are able to reach an agreement, the mediator will write up a mediation agreement. This written agreement is signed by all parties and that document is a legally binding contract that can be enforced by the Court.
If the case cannot be resolved at mediation, the parties move forward with the case towards a jury trial (personal injury case) or Final Hearing (workers’ compensation claim).
Mediations can provide an opportunity to resolve a dispute without having to take the case to a jury trial or Judge. It empowers the parties to decide their case instead of six strangers (a jury) or the Judge. If the case can be resolved at mediation, the clients can net a higher net recovery because of the cost savings of avoiding further litigation. It can also help the clients emotionally by giving them closure.
When done right with an effective mediator, a mediation is a wonderful tool for all parties in any type of litigation.
Personal Injury Attorney Matthew Noyes represents those injured in car accidents, motorcycle crashes, bicycle accidents, pedestrian accidents and other types of personal injury matters. His Clearwater law firm – Perenich Caulfield Avril Noyes – is one of the oldest personal injury law firms in Pinellas County. Call Attorney Matthew Noyes now at 727-796-8282 or simply click here to schedule a free case consultation.