If you are taking part in a mediation in the state of Florida, it is important to know the Florida Mediation Rules. Florida has fully embraced the process of resolving disputes through mediation and has become a place for alternative dispute resolution. Due to the notion that mediation is faster and cheaper than traditional litigation, mediation has continuously increased in popularity as a way to resolve disputes. Many mediations happen in Florida each year, and the Florida Rules of Mediation help streamline and homogenize the process. Yet there are aspects of the rules that can be confusing or challenging for someone who is not familiar with the process. This article seeks to clarify the Florida Rules of Mediation and help anyone preparing for mediation in Florida do so effectively.
This article will define mediation to give us a starting point to discuss the Florida Mediation Rules. Next, it will examine the Florida Mediation Rules, beginning with their history and why they were developed. After this, it will look at the specifics of the rules, including the role of the mediator and the process that the Mediation Rules establish. There will also be a discussion of whether the parties need to agree at the mediation, before looking at the advantages and disadvantages that mediation presents. Finally, it will end with a series of tips to help prepare for mediation in Florida.
Before diving into the intricacies of the Florida Mediation Rules, it is important to establish a working definition and understanding of mediation in general. Knowing what is typical in mediation will help identify areas in which the Florida rules differ and where they follow standard mediation procedures. Mediation is a process of alternative dispute resolution that allows the parties to a dispute to participate in a structured negotiation procedure led by a third-party neutral known as the mediator. Unlike litigation, the parties can control the outcome of the mediation and can contribute to the process. The mediator will often guide the parties through several settlement discussions until they reach an agreement that either concludes the dispute or the mediation. Mediation is often the most recognizable of the dispute resolution mechanism. The mediation process typically has the following characteristics:
- Solutions: The mediator will encourage the parties to come up with solutions to the problem. Depending on the mediator’s style, they may suggest solutions, while other mediators will allow the parties to drive the discussions and solutions. However, in all cases, solutions to the problems presented are sought.
- Neutral: The mediator will be a third-party person who is neutral in the situation. This is important so that all the parties feel comfortable speaking freely and sharing their ideas. Neutrality means that they are not tied to any party in a way that may influence their thinking and that they have no stake in the problem presented or the solutions.
- Bargaining: The parties will eventually make their way to bargaining, either separately through the mediator or in a joint session, and will move toward a solution. This will follow most of the steps of negotiation—offer, counteroffer, and agreement. It is unlikely to have many stops and starts in a mediation.
- Formal: The parties will hire a mediator who will lead them through the process of coming to a solution. There will be a set of rules to be followed and an agreement between the participants regarding the process. It will also usually take place in a designated mediation spot for a day or two.
Mediation can be helpful in a variety of disputes. Because mediation is driven by the parties, the process has flexibility and creativity that others do not have. The presence of a neutral also helps guide the discussion and keep the focus on the issues between the parties rather than the people themselves. Some disputes that mediation is particularly suited for are:
- Structure Needed: Many times, parties that agree to mediation will have already had some attempts to reconcile through negotiation, but they lack the structure to do so. Having a place and time dedicated to mediation can help the parties leap over the hurdles that are distracting them and reach a solution.
- Close to Agreement: In the same vein, many parties in mediation may be close to an agreement, but need the help of a mediator to guide them through the process and help them overcome the last few issues in the way of settlement. However, if the parties could likely settle on their own if given more time, mediation may be an unnecessary cost.
Mediation can be counterproductive when there is a party or an outside influence that has large amounts of influence over one of the parties. This can create a situation where one party is not bargaining freely. The party-driven aspect of mediation can cause this issue, so attention needs to be paid to the balance of power between the parties.
Florida Mediation Rules:
Now that we have a working understanding of the mediation process, we can dive into the Florida Mediation Rules and how they shape the way cases are mediated there. Mediation began gaining ground in community groups in Florida in 1975, and by 1977, the courts opened offices responsible for aiding groups participating and advocating for mediation. In 1983, the Supreme Court had already begun to recommend that child custody cases should be required to participate in mediation before going to trial. After studying the success of alternative dispute resolution in Florida, the legislature called on the Supreme Court to establish rules of procedure for mediation and a code of ethics for mediators. This legislation would eventually work its way into the Florida Mediation Rules.
The Rules of the Procedure that cover mediation focus on how mediations are conducted. They span a variety of subjects that may arise throughout the mediation—such as naming a mediator and confidentiality. They ensure that mediations that take place within Florida are conducted fairly and give the parties the largest chance for self-determination. Alongside the rules of the procedure are the Florida Rules for Certified & Court-Appointed Mediators. These rules govern mediators and their role in the mediations that they preside over. It establishes the qualifications for mediators and covers the ethics and education needed to become a mediator. Working together, these important pieces of legislation outline how mediation thrives in the state of Florida.
We’ve used the word mediator a few times already in this article, but their role in the mediation is important, so it is vital to understand who a mediator is, what they do, and the standards that apply to them. It is also important to understand how mediators are appointed to mediation, because that may affect whether someone agrees to the mediation or not. Mediators are the neutrals that oversee the process of mediation. They move between the parties and help gather information to hopefully move the parties toward a resolution. Mediators are held to high standards and are often lawyers themselves. Because they play such a large role, there are three topics that this section will discuss—the mediator’s job, how mediators are appointed on a specific case, and the qualifications necessary to become a mediator in Florida.
A Mediator’s Role:
Mediators are like the conductor of the mediation in some ways, yet they are also an observer and guide in other areas of the mediation. While the exact balance of the mediator’s role lies within their mediation style, there are some key components to the role that should be noted:
- Control: While it is true that mediation is often known for the control that those parties can obtain in the substance; the mediator is still controlling much of the process of the mediation. Mediators will begin the mediation, separate the parties, speak with the parties individually, reconvene the parties, and give advice when the parties ask.
- Guide: When the parties are beginning to identify solutions or are sharing their case with the other party, it is easy for the parties to wander off the path and get lost in the small details that are not the goal of the mediation. The mediator is tasked with encouraging the parties to stay on track and focus on the core issues, not the unnecessary details.
- Identify: There are often interests or emotions that are affecting the parties’ decision-making, and a mediator may have to help the parties identify these interests. A mediator is not there to give the parties advice, but occasionally it is helpful to identify the things that are blocking a resolution that can be addressed.
- Brainstorm: While mediators usually do not offer solutions or their predictions about how a case will go moving forward, they can help the parties find possible solutions while discussing the case. This may mean identifying a roadblock or helping a party notice a creative solution that may have been overlooked.
- Clarify: A mediator is often responsible for helping clarify the issues and the statements made by the parties. Emotions are usually high in mediation, especially in family court, and the parties will often misinterpret or misunderstand what the other party said and react in anger. While this is a common and normal reaction, the mediator will often have the job of rewording the statement or asking clarifying questions to help the parties identify and move forward from their dispute.
- Resolution: The goal of a mediator is to work toward resolution. This can be accomplished by the roles listed above. It takes skill and practice to develop a mediation practice that frequently concludes with resolution. However, the best mediators will understand that while resolution in a signed agreement is a great outcome, a resolution that values what the parties need, even if that means continuing with litigation, maybe the best resolution.
Because the mediators have such a large job in conducting the mediation, the right mediator for the job must be picked. This can mean that the parties or dispute need specific expertise when choosing their mediator, or it may mean that the parties would like to use a specific mediator that they have used in the past. It can also come down to the cost of a mediator and what the parties can afford in the case. Whatever the case, the Florida mediation rules establish a procedure for appointing mediators in court-order mediation, a concept that we will address later. Mediators may be chosen in two ways:
- Agreement: The parties have 10 days from the court order requiring mediation to stipulate to either a certified mediator or a mediator who is not certified, but whose training or expertise, as observed by the parties and the judge, qualifies them to mediate on all or some of the issues in the case.
- Rotation: If the parties cannot agree, the plaintiff or petitioner needs to inform the court, and the court will appoint a mediator through rotation or another method that the court has adopted for appointing mediators.
Once the mediator has been appointed, the mediation will begin, unless the mediator cannot serve due to a conflict of interest or some other issue with the case. When that happens, a substitute mediator may be appointed in the same way as the original mediator, but they must have the same qualifications as the original mediator.
While mediators come from a wide range of backgrounds, there are common qualifications that are required to become a mediator. These qualifications are for certified mediators in Florida, but as noted above, other mediators may be used if the parties and courts agree that they are suited for the case. To be certified, a mediator must (1) be 21 years old, (2) be of good moral character, and (3) meet the minimum required points for the type of mediator that they would like to be. The points are based on a variety of factors having to do with education and training. County court mediators must have at least a high school diploma, while other mediators must have at least a bachelor’s degree.
As mentioned above, the points that are used to determine qualification are based on education and training. Different levels of formal education and degrees are assigned points based on their difficulty. For example, a high school diploma or GED is worth 10 points while a Ph. D. from an accredited conflict resolution program is worth 40 points. Mediators will also earn 30 points for completion of the Florida Supreme Court mediation training program that is for the certification sought. Candidates will also be awarded points based on the years where they have completed at least 15 mediations and will also receive points for supervised mediations they conducted or mediations that they observe. Most certifications require at least 100 points to qualify.
In addition to collecting points, the parties also need to be of good moral character. The Florida Supreme Court sets this requirement to ensure the protection of the participants in mediation and the public. According to the Florida Rules for Certified & Court-Appointed Mediators, Rule 10.110(c), when considering whether a mediator’s conduct is outside of good character, the following factors are relevant:
- Interference: If the mediator’s conduct will interfere with their duties or responsibilities, this factor will count against them.
- Type of Certification: The board will factor in which area the candidate is seeking qualification.
- Contributing Factors: The factors which contributed to the conduct in question will be considered.
- Age: The age at the time of the conduct will be considered when evaluating the severity of the conduct.
- Recency: The board will look at how long ago the conduct happened.
- Reliability: The board will evaluate how reliable the information surrounding the conduct is.
- Seriousness: Another factor is how serious the conduct is in relation to the mediator’s qualifications.
- Rehabilitation: A candidate will be able to present evidence of rehabilitation that has been completed for the offense.
- Candor: The more truthful that a candidate is with their conduct, the more the board will weigh that in their favor.
- Prior Disqualification: The board will evaluate whether the candidate has previously been denied an application, disbarred, or suspended from any profession.
- Cumulative Effect: The cumulative effect of the conduct or information will be considered.
Finally, the mediator must be able to carry out the Rules of Professional Conduct for Mediators, as required by the profession. Mediators have a vital role in the mediation process, and understanding their role helps prepare and succeed in mediation.
The Mediation Process Under Florida Rules:
With the knowledge of mediation, the history of mediation in Florida, and the role of the mediator, it is time to turn to an overview of the mediation process in Florida. This section will move through the different steps in mediation in order and look at the process under Florida Law.
- Court Order: Much of the mediation that happens in Florida is court-ordered mediation based on the type of case. When this is the case, the mediation will begin with a court order that sends the case to mediation. This is most common in family law disputes and several small claims. The judge, in this case, will see that the parties need the opportunity to settle and send them to mediation. This often includes an order to show up to mediation that can result in sanctions if the parties fail to show up, much like a court hearing.
- Agreement: In cases where the mediation is not court-ordered, the parties will need to agree to participate in mediation. There are a variety of reasons that the parties may agree to participate in mediation, usually relying on the advantages of mediation that will be discussed later. If there is no agreement or court order, the parties cannot force mediation.
- Selecting the Mediator: Once the case is sent to mediation, the mediator will be appointed either by an agreement of the parties or by the court, as discussed above.
- Preparation: The parties will need to begin to prepare for mediation once they are set. This includes gathering information and forming a plan for how the party would like to settle the case. Tips to prepare for mediation will be discussed later in this article.
- Convening: Unless the court issued a summons for the mediation, the mediator will often call the parties or their attorneys to arrange the mediation and discuss any preliminary issues.
- Interim or Emergency Relief: In court-ordered mediation, the parties may petition the court for interim or emergency relief. Unless the court issues a contradictory order, the mediation will continue while the motion is pending. This typically is when one of the parties needs to stop or compel an action while waiting for the mediation. This can also happen at any point but usually happens early on in the process.
- Mediator’s Opening: The mediation will officially begin with the mediator’s opening statement. During this statement, the mediator will establish why the parties are there and will explain any ground rules for mediation. The mediator needs to explain the process and its role.
- Party Openings: Once the mediator is finished with the opening, they will usually allow the parties or their attorneys to present their view of the case and what they hope to accomplish through the mediation. This is the chance for the parties to advocate for their position and allow the other party to see where they are coming from and what they need. This is often one of the only times that the parties will have the opportunity to share why they need what they need directly to the other party.
- Negotiation: The negotiation portion of the mediation process is the part that varies the most depending on the mediator’s style of the parties’ needs. The mediator can choose to either keep the parties together to negotiate or can split them up to negotiate separately through shuttle diplomacy where the mediator moves back and forth between the parties.
- Conclusion: The mediation will end in one of two ways—either the parties will reach an agreement to end the case totally or in part or they will not be able to agree to anything and decide to move forward with the litigation.
While the mediation process may feel overwhelming, almost half of the work will be done before the mediation actually begins. A well-prepared party will be able to mediate effectively and feel confident in their decisions at the end of the day.
Besides the process and the role of the mediator, there are several other important characteristics in mediation in Florida. These characteristics impact the ways that the parties will participate in the mediation and what they can do moving forward from the mediation. These considerations are:
- Confidentiality: As a general rule, mediations are to be confidential. The mediator is barred from sharing anything that happened in the mediation unless the parties expressly agree. The parties will often agree to keep the discussion confidential as they move forward. If the mediation is court-order or mandatory, the discussions must be kept confidential under the Mediation Confidentiality and Privilege Act. This exists to allow the parties to speak freely and not worry about having something said used against them later. This also means that the mediator cannot share anything from a caucus with the other parties unless you expressly agree.
- Agreement Not Required: While the goal of mediation is settling the case, it is not mandatory for the parties to reach an agreement by the end of mediation. Some cases just will not be solved in mediation and will need to continue through litigation. Other cases may not settle during mediation, but they will settle between mediation and litigation. The important thing to remember is that there is no penalty for not agreeing to mediation.
- Attorneys: Another aspect of a mediation that needs to be considered is whether an attorney should be used for mediation or not. Attorneys can be helpful when the clients need guidance or need to protect themselves or their position. However, attorneys may get in the way if they do not want their clients to be active participants. Choosing whether to use an attorney or not depends on a variety of factors, but it is the party’s decision. However, if the opposing party has an attorney or if you have already hired an attorney, it would likely be best to bring an attorney to mediation.
- Final: An agreement reached in mediation will be enforceable between the parties unless there was mediator misconduct that contributed to the agreement. Therefore, it is important to be fully sure that the agreement encapsulates the desired outcome before it is finalized.
- Impartial: While the mediator may have ideas and suggestions, they are there to be impartial. This means that they show no favoritism or prejudice. They are not there to pick a winner or loser but are there to help guide the process of negotiation. If a mediator acts outside of this, then there may be grounds to vacate an agreement.
- Cost: Cost will vary greatly depending on the type of case that is being brought and whether the court appoints the mediator or the parties choose. Some mediation may be free or based on income, but private mediators may charge high fees.
Advantages and Disadvantages of Mediation:
With all of the procedures and policies that need to be considered in mediation, it may seem unreasonable to participate in mediation, especially when there may not be a resolution and litigation may have to continue anyway. However, many advantages make mediation worth it for many parties, particularly in Florida. There are also some disadvantages of mediation that need to be considered when evaluating if mediation will be helpful in a case. It is important to note that if the court has ordered mediation, the parties will need to participate, even if they do not want to. Considering all of the reasons to choose or not choose mediation will help the parties determine if mediation is the right choice.
The advantages to mediation include:
- Impartiality: Impartiality is an important aspect of mediation. Because the parties can speak freely with someone who is not going to decide whether they are in the right or wrong, they will often speak more freely and the negotiation will often go better than it would without impartial help. Litigation is all about the adversarial system and will not breed as much openness.
- Understanding: Because mediation is a look into the dispute and how it can be solved, it often provides some insight into why the dispute arose and why it was as difficult as it was. This can help the parties find better ways to keep conflict at bay in the future and help each other find a resolution. It gives people a chance to see the dispute from the other side.
- Overcoming: Occasionally, the parties will have been negotiating for some time before coming to mediation, but they just cannot agree on portions or the whole thing. This is where mediation can be incredibly helpful because it allows the parties to gain insight into the roadblocks that they are facing and hopefully move toward a resolution. This can be done through reframing and listening techniques that allow the parties to hear things differently.
- Confidentiality: Litigation is public and records may be accessed publicly. Mediation, especially if court-ordered, is bound by the confidentiality rules. This means that everything said in the mediation is not allowed to be shared with anyone outside of the mediation. This protects the parties from any embarrassing or harmful information being released. It also allows the parties to be more open with each other and the mediator.
- Flexible: Litigation is rigid and only allows the outcomes that choose one party’s position over the other. Mediation allows the parties to be creative in their problem-solving and find solutions that would not be available in court. This allows the parties to bring in other considerations and tailor the outcome to their needs. It allows collaborative solutions over completive solutions.
- Cost: Mediation is often cheaper than litigation, especially if there are no attorneys in the mediation. The parties may receive free or low-cost mediation and may not need to pay attorneys’ fees during a mediation. Litigation can be expensive for the parties.
- Self Determination: In mediation, the parties can decide the outcome of the case on their own. They are not presenting their case to a decisionmaker who decides for them, but instead, they are working together with the mediator to come up with a lasting solution that benefits everyone.
- Confidence: Unlike a judge or jury trial, the parties in mediation do not have to gamble with the outcome of the case. They can make decisions about the settlement and whether it will be enforceable or not. This is not the case when cases are heard in front of juries or judges who decide for them.
- Enforceable: In Florida, a signed agreement by the parties becomes a legally binding contract between the parties and has remedies for the parties moving forward should one of the parties ignore the contract.
- Time: Because mediation is not tied to a court schedule like a trial, the parties may be able to resolve their dispute more quickly if they can mediate rather than litigate. Mediators are often available sooner than judges.
While these advantages certainly make mediation worth it, there are also disadvantages. These disadvantages include:
- Smaller Recovery: Often, when a party has a good chance to recover a lot of damages at trial, mediation will often result in a smaller recovery, especially when there are claims for punitive or other damages that will not be imposed on the party in the wrong when the parties settle. For this reason, if a party has a strong case and is seeking compensatory and punitive damages, settling the case through mediation may not be the best option.
- No Accountability: When a case settles, there is no determination of fault. This means that if one of the parties was in the wrong, the court will not make that determination and hold them accountable for that. This can be particularly difficult for parties that are involved in emotionally charged cases and would like to see what they consider justice happen. In these cases, mediation will not be the best option.
- Informal: Because the rules of evidence are different when the parties are mediating, a party’s case may end up being inflated with the help of evidence that would not be admitted at trial. This can create a situation where the other party feels the need to settle due to a weakened case, even if they actually would have had a better chance at trial.
- Power Dynamics: While not present in every mediation, there are often power dynamics at play that can affect the way the parties can settle the case. If one party in the dispute tends to have or control more of the power, the other party may end up feeling pressured to settle to stop the control.
- Lack of Discovery: Mediation may not be the best option when it feels like the parties do not have the full picture of the case and need to have time to gather information, prepare, and evaluate their case. This is sometimes only possible through discovery, and discovery usually does not happen fully before mediation. In these cases, mediation should be postponed until more information is available or avoided.
Mediation is often a solid choice for a case that can settle. It is also a solid choice for cases where the parties are confident in their case and understand where they need to be to settle. However, it is not best for every case, and the differences need to be evaluated to determine if it is the best option.
Tips to Prepare for Mediation:
Now that we have examined the rules for mediation in Florida and have a thorough understanding of the process, it is time to examine how to prepare for mediation. While some parties may feel that they should be able to show up to mediation unprepared because it is an informal discussion, adequate preparation is vital to walking away from mediation with a helpful and collaborative agreement. Preparation is key to confidence in decisions and the ability to convince the other parties that you are offering what they need. Mediation can be beneficial with the following considerations:
- Organization: There is often a lot of information in a legal case. There will be evidence and ideas and laws and other sources that will need to be sorted and organized to present the best version of the case. Organizing the information allows you to present a clear picture of your view of the case.
- Advice: If there are questions about legal ideas and principles in the case and you are not working with an attorney, it will likely be best to consult with an attorney for an understanding of your legal rights. A mediator will not be able to answer questions about your rights, so it is best to know these going in.
- Issues: Understand the issues and what will need to be decided at the mediation. This includes anything listed in the complaint or other paperwork and anything else that you can think of that could be tied to this case. Organize your thoughts and know where you need to have the best decisions and where you are willing to compromise.
- Opponent: Not only should you know your case inside out, but you should also research and develop ideas for what the other side may need or want out of the mediation. Doing so allows you to offer things that you know the other party may need to help you achieve the result you intend to.
- Goals: Set clear goals for yourself depending on what you need out of the mediation. Figure out which one of the goals is the most important to you and why it is that way, and create goals that help set you up to achieve your most important goal while hitting smaller goals along the way.
- Punctuality: Come to the mediation prepared and on time. This gives you a chance to get settled and feel comfortable with the setting and the mediator before the mediation starts. Arriving unprepared or late may leave you frazzled when you are starting the mediation.
- Breaking Point: Every case will have a point in the mediation where it is not going the way it was planned, but certain situations will cause the parties to walk away. It is important to know what your breaking point is because it is important to understand when the best option is to walk away.
Mediation in Florida is very similar to mediation in other places. It allows the parties to find common ground and reach an agreement that is beneficial for everyone. It gives them stability and self-determination by allowing them to choose the outcome of the case. Florida also has strong protections for parties in the mediator standards and in the way that they regulate their mediators. Additionally, Florida is unique in that a large portion of cases are often diverted into mediation from litigation by court order. However, mediation in any state can bring a swath of benefits to the parties if they are prepared and ready to take on the mediation and work to reach an agreement that works for everyone. Mediation is a great way to settle a dispute, and Florida is a great place to mediate.