In our law practice, we always pursue the most positive outcome for you. To that end, we may sometimes advise you to consider mediation, rather than take a case to trial. Mediation is a process where a third-party neutral, a professional mediator, listens to both parties and helps encourage and facilitate a resolution. When mediation is the best option, we will be by your side through the entire process to advise you.
What is the process?
A mediator’s role is to help reduce communication issues, assist in identifying settlement issues, and facilitate creative settlement options. During mediation, it is not unusual for a mediator to “caucus”. Caucusing is when a mediator places each party and their separate attorneys in two difference rooms. The mediator will then travel back and forth between each room to facilitate the negotiation process and assist in settlement proposals. Parties may prefer to caucus in certain instances as they may feel that it will give them the opportunity to speak more openly and privately with their counsel.
Will what I say during mediation be used against me?
Although there are a few exceptions, all communications that take place during mediation are confidential and are not to be shared with any person outside of the mediation process. Once a full written agreement is signed, however, that agreement will be filed with the court and will no longer have confidentiality or privilege attached, unless the parties agree otherwise.
What are the exceptions to mediation confidentiality?
Pursuant to §44.405, Florida Statutes (2017), confidentiality or privilege will not attach to a signed written settlement agreement for any communication during mediation:
- For which the confidentiality or privilege against disclosure has been waived by all parties.
- That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.
- That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report.
- Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding.
- Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.
- Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.
How does attending mediation benefit me?
The benefit of attending mediation is that it gives both parties the opportunity to present their case, negotiate, and potentially formulate a tailored agreement that both parties are comfortable with. Another benefit of attending mediation is that it gives both parties the opportunity to avoid the expenses of trial preparation, the expenses of attending trial, and the uncertainty of a trial outcome.