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What is Mediation?

What is Mediation?

By Florida accident lawyer James W. Dodson

Mediation is a process which is used to attempt to bring opposing parties to reach an amicable agreement to settle their differences. It is used in all types of civil cases, including personal injury and dissolution of marriage. In injury cases it is sometimes employed before a lawsuit is filed (lawyers refer to that as” pre-suit mediation”). The focus of this article is on mediation conducted after a lawsuit has been filed. In that situation, it is used in virtually all civil cases prior to trial.

Mediation is generally arranged voluntarily between the parties, but can be court ordered, as well. In Pinellas County, Florida, the judges will not assign a trial date for a case until it has been unsuccessfully mediated. That is because nearly 70% of cases which are mediated after a lawsuit has been filed will result in a settlement agreement being reached.

In a typical personal injury case in Florida, once a lawsuit has been filed, the parties will conduct discovery in order to learn the facts of each party's case. Depositions of witnesses are taken and sworn interrogatories and documents are exchanged. Once the parties feel they understand each other's position sufficiently, they will mutually agree to conduct a voluntary mediation, i.e., one which the Court has not ordered to be conducted. In those instances in which the parties cannot agree to set mediation, the court will order it.

In voluntary mediations, the lawyers for each party confer and reach an agreement on a mediator and a date and place to meet. Many mediators have offices designed to conduct mediation with sufficient conference rooms. Otherwise, it may be held in one of the lawyer’s offices or at some other agreed upon location, such as a court reporter's office.

The mediator is a lawyer or former judge who has completed a specific course of study in mediation procedures in order to become certified by the court to conduct mediations. There are hundreds of names to choose from in most jurisdictions. In reality, most lawyers normally operate off of a “short list” of a dozen or so mediators with whom they are confident will conduct meaningful and productive mediations. Addtionally, the lawyers strive to find a mediator they believe has the personality, background and skills to be effective for that particular case. In those rare instances where the parties are unable to agree, the court may order the mediation and designate the mediator.

The role of the mediator is to facilitate a meaningful compromise of each party's position so that they can agree to settle the case. In order to accomplish that goal, each side provides the mediator with a written summary of their view of the case. At the beginning of the mediation conference, each party orally presents their arguments during the joint opening session. Then parties, and their lawyers, retire into separate conference rooms for the duration of the process. The mediator meets separately with each and conveys the positions being taken by the opposing parties. Based upon the evidence discussed, the mediator suggests to the injured party why they need to consider reducing what they will accept the settle the case. Likewise, the mediator suggests to the defendant why they need to consider increasing what they are willing to pay. The mediator has no authority to require either side to change their position or make them compromise. They are not decision-makers or fact finders. They are facilitators. Thus, the mediator’s experience and ability to be persuasive are critical in successfully achieving settlements.

Mediations vary in length. Uncomplicated cases with only two parties may be three hours. Others may be half of the day. Multiple party cases with complicated issues require a full day or longer. The mediator’s fee varies, beginning from about $200 an hour in our jurisdiction to $300 or more per hour. Their fees increase as they become known for effectively resolving cases. Unless there is some other agreement, each party will pay one half of the mediator’s fee, although this may be subject to negotiation, as well.

Mediation has shown itself to be effective in resolving civil cases and has become an integral part of the civil justice process.

About the author: James W. Dodson is an accident lawyer, devoting his practice exclusively to injury claims, including car crashes and fall cases. He has represented injured clients in Clearwater, St. Petersburg, Tampa and throughout Florida for more than 20 years. He is the author of several books offered FREE to consumers, including Five Mistakes That Can Ruin Your Auto Accident Case in Florida, Dangerous Trips to Avoid in Your Fall Case, and Buying Car Insurance. You'll find these books along with helpful articles and videos at his website www.JWDodsonLaw.com.

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