How e-Mediation Can Improve Case Resolution and Client Satisfaction

The spread of the COVID-19 pandemic has resulted in the closure of many businesses, organizations and government offices around the nation. Courts have been affected as well—many have had to halt regular operations.

The good news, however, is that courts and law firms have found ways of adjusting to the reality of a global pandemic by increasing their online service offerings. 

While the proliferation of e-mediation services arose largely out of necessity due to the pandemic, e-mediation will continue to be a prominent service offering, even as pandemic-related restrictions relax and the pandemic itself starts to wind down (whenever that may be). Many clients, attorneys and court professionals alike have found e-mediation to be a process that can improve case resolution and overall client satisfaction.

Let’s take a closer look at the benefits of mediation and how bringing that process online has resulted in a high level of client satisfaction and positive results.

About e-mediation

Mediation is one of the most frequently used alternatives to a trial. In a mediation, the parties and their respective attorneys work with a neutral mediator to discuss the issues and to negotiate solutions. The mediator is not present to act as a decision maker, but rather as a guide to help you come to arrangements that work for you both.

There are a variety of benefits associated with the mediation process:

  • Cost: Mediation is significantly less expensive than having to go to a trial and all the hearings associated with it. In addition, because both parties maintain control over the outcome of mediation, you stand to lose less in the process.
  • Confidential: Unlike with a trial, there is no public record created for mediation sessions. Everything you discuss and all the decisions you make are strictly confidential.
  • Control: Throughout mediation, you maintain control over how you will resolve the issues of your case and, thus, are able to create arrangements that are based on what’s fair from your perspective. If your case goes to court, you relinquish this control to a judge who will impose decisions based on strict legal guidelines.
  • Legal guidance: Though both parties have control over the mediation process and the decisions they make, they’re still able to have attorneys by their side throughout the process to advise them.

So long as two people are willing to show up, negotiate in good faith and be willing to compromise and make some concessions, the mediation process can be extremely helpful.

Bringing mediation online

The e-mediation process brings all of the same benefits of standard mediation, while also adding a few others. Consider the following:

  • Convenience: Online mediation provides clients with some added convenience in that they don’t have to travel to an in-person meeting location. During the pandemic, while many people are working from home and also supervising children, this makes it much easier to complete mediation sessions without having to block off half a day. In a post-pandemic world, as people’s lives return to their normal hectic natures, cutting out the travel time can open up more scheduling opportunities. 
  • Comfort: The conference room at a law office can be a rather cold, intimidating setting to negotiate. There’s something comforting about being able to have these conversations and negotiations from the comfort of your own home.
  • Cost effective: Time saved also translates to money saved. You won’t have to worry about travel expenses, missing as much work time or hiring childcare. You’ll simply be paying for the service without the added hidden costs.
  • Power balance: In an online setting, it becomes much more difficult for one partyto attempt to exert authority over the other through pressure or intimidation. If you have any unease about engaging in face-to-face mediation sessions, the online setting can be much more comfortable and create a much better balance of power. You’ll still be able to benefit from advice and guidance from your attorney throughout the process.
  • Accessibility: For individuals with disabilities, the ability to engage in online mediation sessions is extremely helpful, as they do not have to worry about accessibility concerns.
  • Easy: Online mediation is simple—with a working computer or tablet and an internet connection, anyone can join a video conference session. 

There are some logistical differences that must be maneuvered with online mediation. For example, any documents that must be signed will need to be signed electronically. People who are not technologically savvy may require assistance from another person in getting the meeting set up. 

But, in general, the numerous advantages associated with e-mediation services are quite likely to make this a service that will remain popular even in a post-pandemic America. It expands on the increased client satisfaction associated with choosing standard mediation over a long-term trial and makes for more efficient and effective case resolution.

If you are interested in learning more about what the e-mediation process looks like and how it can benefit you, then please contact the E-Mediation Services firm today.  

E-Mediation: What Your Clients Need to Know About Privacy and Security

Online dispute resolution is gaining more traction in the wake of the current COVID-19 pandemic, yet expert mediators and seasoned lawyers are questioning how safe it is to communicate via highly popular online conferencing applications like Zoom, and whether additional security measures need to be in place from platform to platform.

It’s not solely the shelter-in-place requirements that have turned some veteran law professionals towards online mediation. E-mediation has been common for some time andhas seen a steep increase in utilization by legal professionals in recent months, due to the COVID-19 pandemic. But in the field of conflict resolution, the utilization of teleconferencing services like Zoom, WebEx, and Skype can raise concerns for parties involved as to the security of their data, and create knee-jerk reactions to even considering online dispute resolution.

Is Conducting Online Dispute Resolution Safe?

First, we have to explore the roots of technological advances in Online Dispute Resolution (ODR) and how it’s developed. There are three conceptual key areas to note:

  1. Trust–Online Dispute Resolution is not merely a tool to assist with e-commerce, but a natural evolution of a modern trend towards using alternative approaches to litigation across all spectrums, from family disputes to civil and commercial law.
  2. Fairness–Since average trials are getting longer and more complex, and the cost of pursuing traditional legal recourse is rising, handling dispute resolution online versus an in-person court setting allows for nearly all legal cases to be heard and settled, especially since the court system is also in acceptance of the adoption of this mainstream technology.
  3. Security— Online Dispute Resolution provides more immediacy, interactivity, and media richness to choose from. When convening in real-time video, the participants are able to navigate and communicate safely through ODR-specific software that protects everyone’s privacy. 

In legal settings, effectively using online conferencing has been well documented and researched as a preferable option for mediators and lawyers who seek to have secure conversations with their clients and/or other professionals in their field. It’s knowing how to use web conferencing apps properly that can make or break privacy, whether during our current pandemic crisis or otherwise. From a technology standpoint, Zoom, for instance uses powerful end-to-end encryption under the AES256 standard for all communication, thereby ensuring that the chat, video, and audio features are compliant with current privacy standards. Other apps offer this as well, but it is highly recommended that you check the encryption standards of a service before committing to conducting confidential meetings on their platform.

Only when “hackers” who desire to breach security lines–after all, Zoom is an open platform–enter into an invited Zoom room meeting, will the hacker who intentionally retrieved the 10-digit invitation code be able to bypass the default settings used by the general public. In recent weeks, a glitch allowed random users to get the code errantly, in many cases when an invitation came from larger groups of participants. This glitch allowed “Zoom-bombers” to drop in on Zoom calls, either unwanted or uninvited. As of the writing of this article, this issue has been widely discussed, and even addressed by the FBI, leading to the company making a public statement on the matter, and many cybersecurity experts weighing in on best practices for preventing such an occurrence. 

Shoring Up Online Connections

The simple resolution for legal professionals using the service is to lock the Zoom call once all participants have entered by clicking or tapping the “Lock Meeting” button to ensure no new people may enter, even if they have the meeting ID and password. This simple protective tactic can not only provide peace of mind to the legal professionals in the mediation, but also to the clients who are involved in a mediation session on the platform.

Other alternatives to Zoom for e-mediation include Skype for Business, Cisco’s WebEx, and Clickmeeting, among other more niche teleconferencing applications. Each platform has its own advantages and disadvantages. Skype for Business is easy to use, with a recognizable interface that many find intuitive. WebEx has robust file sharing tools, but may be less intuitive for clients than a more familiar platform. Zoom has become quite popular in recent months, but obviously has its own security concerns as of late. The most important takeaway for legal professionals in this scenario is to research and choose a service with three important factors: Proper end-to-end encryption, secure (lockable) meeting rooms, and adequate usability for all parties. As long as these measures are in place, your clients need not worry about their privacy and data security getting into the wrong hands.

Business as Usual

The new normal of mediation in the time of COVID-19 is certainly giving reasons to pause and reflect on established practices with clients and whether an upgrade of safety precautions need to be put in place for each firm or individual mediatingon behalf of their client. It is essential to build trust in the online world of e-mediation. 

Online Dispute Resolution technology is  constructed in such a manner that the public shouldfeel as though they can place their trust in a secure, effective, and efficient way of handling their disputes. Userscan have confidence in the goodness of the online technology being able to support their dispute, performing as promised, reducing costs, and being user-friendly. 

Protecting systems and client data from malfeasance is an ongoing process of increased and more advanced cybersecurity measures. Developing a consistent and trusted framework for the ODR process requires parties to trust the mediator to maintain confidentiality with the parties involved, stay up to date on secured and encrypted online services, and protect information throughout the process. 

As an expert in online mediation, E-Mediation Services takes the utmost care to digitally protect client data, use only properly encrypted tele-conferencing services, and maintain efficient and confidential content pathways between all parties involved. If you are considering online mediation for your client’s dispute, reach out to the firm here, or check the calendar to book an upcoming appointment.

A Comparison of the Various Digital Platforms Favored by Mediators

Mediators and attorneys across America are getting a crash course in video conferencing software due to the COVID-19 pandemic. Many legal professionals are using these tools for the first time, and are understandably wary of the technology. After all, it should not only replicate the feeling of an in-person meeting as much as possible, but also needs to protect client information and other sensitive details, be reliable, be user-friendly and be effective. That can be a tall order.

If you’re struggling to decide which digital platform to use for your Florida e-mediation firm, there are three popular choices amongst mediators. Here’s a comparison between the three so that you can choose the platform best suited for your practice.

WebEx

WebEx is a virtual meeting platform that can host up to 200 participants at one time; plans range from free to $26.95 per month. The biggest advantage of WebEx is that many IT professionals have identified it as the most secure out of these three options.

The problem with WebEx is that, while you can make separate “breakout rooms” as well as a joint session for everyone, you can’t send chat messages to anyone outside of your conference room. You either have to “pop in” rooms randomly or text and call the other parties. I suggest not only labeling the rooms very clearly, e.g., “JOINT SESSION,” but having participants mute their microphones while they’re waiting for you to rejoin their conference room. That way, no one accidentally hears anything they shouldn’t.

GoToMeeting

GoToMeeting is a similar tool that can host up to 250 participants. Pricing ranges from free to $39 per month, and all plans come with a 30-day free trial. The free trial requires access codes and PINs to protect privacy, but meetings are unlimited.

As with Zoom, GoToMeeting also offers a breakout room option. However, just like WebEx, you’re unable to communicate with people outside of the conference room unless you join their breakout room. This software focuses more on their screen sharing features—you can give participants access to your keyboard and mouse, for example—instead of webcam features that would help with the type of communication e-mediation typically requires. For example, there’s no way to poll users, nor is there a “raise your hand” feature so that participants don’t talk over each other. 

However, GoToMeeting, like WebEx, is affordable and has plenty of features to make your experience productive and effective.

Zoom

Finally, Zoom is another popular choice for e-mediators. Like WebEx and GoToMeeting, Zoom has a basic free plan, and professional plans are priced at $14.99 and $19.99 per month. Zoom offers group messaging and screen sharing options.

The biggest advantage of Zoom is that you can set it up to make it as secure—or not—as you prefer, which makes it popular in courtrooms, even for confidential proceedings. In some respects, it can be secure enough to be considered HIPAA-compliant.

For example, as a host, you can prevent or allow recordings of the procedure. You can also make people hang out in a virtual “waiting room” or “breakout room” until you join the conference, which prevents parties from talking to each other. Rooms can be password-protected, too. 

While Zoom is more secure in some respects, it’s still not secure enough for some law firms and counties—check with your local procedural guidelines for more information. Another drawback is that you can’t privately message people who aren’t in your breakout room. You can only message everyone in the breakout rooms, all at once, to let them know you’re switching rooms.

Which software you choose will depend on your needs as a mediator. No one platform is perfect, so take advantage of the free trials in order to find the video conference software that works best for you.

This firm is comfortable working with clients who use any of these three platforms, so if you have a preference, be sure to let your mediator know when you set up your e-mediation. Get in touch with us today to learn more.

How to Effectively Use a Virtual Conference Room

Law firms across America are pivoting to video conferences during the COVID-19 pandemic in order to keep business moving even while most of the country is sheltering in place. In order to make these video conferences as effective as possible, especially when mediating between clients, it’s important to make it feel as much like an in-person conference as possible. Paying attention to the details, from the audio visuals to your interactions with the parties, leads to a more efficient e-mediation.

If you’re new to using virtual conference rooms, the following tips will help set you up for success. 

  1. Good lighting is important. It can be difficult—especially when working from home—to create a professional-looking e-mediation setup. You might need to make some adjustments to your office lighting so that the other parties can clearly see you. If you’re sitting in front of a window, you’ll be backlit, which says “witness protection” more than “experienced legal professional.” Move your seating so that the light is shining toward your face, not behind it. This might involve putting a lamp or other light source behind your monitor and webcam.
  2. Test your audio first. Making sure the other attendees can hear you is crucial to a successful video conference. Some people choose to use external headsets and microphones in order to prevent echoes and static. If you decide to use one, make sure that your software settings recognize the external mic. You might want to experiment by recording audio first, which will allow you to test the sound. If it’s not clear, try pinning the mic to a different part of your shirt or switching headsets.
  3. Position the camera at eye level. If you were at an in-person mediation, no one would be looking up your nose—but if you’re using a laptop or monitor with a built-in camera, the other parties might be doing just that. Position your camera so that it’s at eye-level. You might need to prop it up with large books or a laptop stand, but the result will be a more professional, natural appearance. 
  4. Close your other apps. If you were hosting a conference in person, you probably wouldn’t be running a bunch of different programs or apps during the meeting. It’s no different with a virtual conference. Not only will other programs make noise and distract you while you’re supposed to be focusing on the mediation, but they can also slow your computer down and divert resources away from the virtual conference program. This results in lags, screen freezes and other unprofessional problems. Only have open what you absolutely need, and remember, even if the other parties can’t see your screen, they’ll be able to hear everything you do. Mute your microphone when you’re not speaking.
  5. Read the room. Finally, part of mediation involves reading the room. Just as you would in person, virtually watching others’ reactions to your proposals and suggestions can give you clues as to who is satisfied and who might disagree. In order to do this, enable the “gallery view” feature on your conference software. This will show you everyone onscreen at the same time, so you can observe them during the mediation. Generally, you should use the gallery view anytime there are more than two parties in a conference room.
  6. Stay until everything is wrapped up. In an in-person mediation or conference, you would stay until everything is finished and the parties have left the building in order to prevent parties from talking to each other on their own, and the same applies here: wait until at least one party, if not all of them, have left the conference room before you disconnect, too.

Using these simple tips will help your Florida virtual conferences go off without a hitch.

If you’d like to see these tips in action during your next e-mediation, then please contact the firm to get your mediation scheduled.

How e-Mediation is Helping the Legal Profession Thrive During COVID-19

Online mediation is nothing new—some mediators have been taking their alternative dispute resolution to the internet since the late 1990s. While many people traditionally think of lawyers, judges and mediators as conducting duties primarily within physical law firms and courthouses, e-mediation is a popular tool for resolving conflicts between long-distance parties, saving time and money on travel. Today, as courthouses and law firms close to prevent the spread of COVID-19, e-mediation is ensuring that the wheels of justice don’t grind to a complete halt.

Moving mediation and other legal procedures online

Since COVID-19 is easily spread, every state in America has declared a public health emergency, necessitating the closure of public spaces where people gather—including courthouses and non-essential businesses. Cases that can’t be postponed are now being handled online; many courts are offering e-filing options and handling pre-trial conferences or other procedural matters entirely online. 

For many lawyers, judges, clerks and courtroom staff, this is unprecedented. While there has been a steady push to move some proceedings online—after all, it significantly cuts down on travel time for legal professionals as well as parties and witnesses—the legal profession has always been slow to change. Now, thanks to COVID-19, many are finding that technology isn’t just a stopgap solution during the pandemic. It’s a viable tool that makes justice more accessible for everyone.

The hesitation to move legal procedures online doesn’t (entirely) stem from a Luddite-like wariness of technology. There are valid questions that lawyers, judges and mediators have been debating for years, often privacy and security-related. However, the pandemic has forced the profession’s hand, and many are experiencing just how convenient, safe and effective it can be. Even the American Bar Association Journal has compiled a guide to e-mediation and online dispute resolution, recognizing the necessity of continuing to work even when the future is uncertain.

Some mediation firms have reported an uptick in requests for online mediation since the pandemic spread to the United States. While many e-mediation requests are for cases already in progress, so as not to lose momentum, others are finding that new parties are seeking online mediation.

With the unprecedented economic crisis—including the inevitable wave of tenant evictions and foreclosures due to mass COVID-19 unemployment—e-mediation will continue to be key in protecting parties’ rights and solving disputes for months to come. 

The lasting impact of e-mediation during COVID-19

Just as many businesses are quickly finding that it’s possible (and in many cases, convenient) to allow employees to work from home, the legal profession is expected to follow suit. Granted, not every proceeding will translate well to the internet, nor should it—in proceedings like jury trials, there’s simply no substitute for face-to-face communication. 

However, as Forbes reports, although law has traditionally clung to brick-and-mortar, face-to-face proceedings and work environments, moving business online offers greater job satisfaction, enhanced productivity and even a more efficient use of company or firm resources. While the legal profession has been cracking under the strain of intense student debt, partnership models that don’t make sense in today’s world and the limitations of in-house counsel, the pandemic has illuminated a solution that’s been around for the last two to three decades.

E-mediation is just one part of the answer, but experts are holding it up as proof that online dispute resolution is not only safe, but effective. The work that e-mediators have done to pave the way will likely be reflected in enhanced access to online tools for the entire profession.

While the COVID-19 crisis has resulted in an extraordinary economic and health crisis for Americans, it may also be the key to moving a traditional and staid profession firmly into the 21st century—which will ultimately have a positive impact nationwide.

Choosing an E-Mediator During COVID-19? Choose One with Experience

Online mediation is nothing new—some mediators have been taking their alternative dispute resolution to the internet since the late 1990s. While many people traditionally think of lawyers, judges and mediators as conducting duties primarily within physical law firms and courthouses, e-mediation is a popular tool for resolving conflicts between long-distance parties, saving time and money on travel. Today, as courthouses and law firms close to prevent the spread of COVID-19, e-mediation is ensuring that the wheels of justice don’t grind to a complete halt.

Moving mediation and other legal procedures online

Since COVID-19 is easily spread, every state in America has declared a public health emergency, necessitating the closure of public spaces where people gather—including courthouses and non-essential businesses. Cases that can’t be postponed are now being handled online; many courts are offering e-filing options and handling pre-trial conferences or other procedural matters entirely online. 

For many lawyers, judges, clerks and courtroom staff, this is unprecedented. While there has been a steady push to move some proceedings online—after all, it significantly cuts down on travel time for legal professionals as well as parties and witnesses—the legal profession has always been slow to change. Now, thanks to COVID-19, many are finding that technology isn’t just a stopgap solution during the pandemic. It’s a viable tool that makes justice more accessible for everyone.

The hesitation to move legal procedures online doesn’t (entirely) stem from a Luddite-like wariness of technology. There are valid questions that lawyers, judges and mediators have been debating for years, often privacy and security-related. However, the pandemic has forced the profession’s hand, and many are experiencing just how convenient, safe and effective it can be. Even the American Bar Association Journal has compiled a guide to e-mediation and online dispute resolution, recognizing the necessity of continuing to work even when the future is uncertain.

Some mediation firms have reported an uptick in requests for online mediation since the pandemic spread to the United States. While many e-mediation requests are for cases already in progress, so as not to lose momentum, others are finding that new parties are seeking online mediation.

With the unprecedented economic crisis—including the inevitable wave of tenant evictions and foreclosures due to mass COVID-19 unemployment—e-mediation will continue to be key in protecting parties’ rights and solving disputes for months to come. 

The lasting impact of e-mediation during COVID-19

Just as many businesses are quickly finding that it’s possible (and in many cases, convenient) to allow employees to work from home, the legal profession is expected to follow suit. Granted, not every proceeding will translate well to the internet, nor should it—in proceedings like jury trials, there’s simply no substitute for face-to-face communication. 

However, as Forbes reports, although law has traditionally clung to brick-and-mortar, face-to-face proceedings and work environments, moving business online offers greater job satisfaction, enhanced productivity and even a more efficient use of company or firm resources. While the legal profession has been cracking under the strain of intense student debt, partnership models that don’t make sense in today’s world and the limitations of in-house counsel, the pandemic has illuminated a solution that’s been around for the last two to three decades.

E-mediation is just one part of the answer, but experts are holding it up as proof that online dispute resolution is not only safe, but effective. The work that e-mediators have done to pave the way will likely be reflected in enhanced access to online tools for the entire profession.

While the COVID-19 crisis has resulted in an extraordinary economic and health crisis for Americans, it may also be the key to moving a traditional and staid profession firmly into the 21st century—which will ultimately have a positive impact nationwide.

Why Mediate?

Mediation is an incredibly helpful method for reconciling disputes, especially those disputes that would otherwise be going to trial. There are a number of advantages to mediation, including:

  1. Saving time;
  2. Saving money;
  3. Having control;
  4. Having your voice heard; and 
  5. Decreasing stress 

Mediation Saves Time

Often mediation can be done within 1 – 2 months, whereas a trial won’t happen for anywhere from 3 – 18 months. Saving you time in resolving your dispute means that you can decrease your stress and save some money.

With mediation, you may be able to avoid the stress of litigation/discovery, which is often very time-consuming throughout the preparation process because you’ve got to hand over documents/records of all sorts, conduct depositions, be the subject of depositions, etc. 

Mediation may also allow you to avoid the cost of litigation/discovery, which is incredibly expensive because you have to pay an attorney to spend a lot of time reviewing every document/piece of evidence, conducting depositions, preparing you for trial, etc.

Moreover, mediation allows you to control the outcome of the case, unlike having a judge force a decision on you. Judges – and juries – can be unpredictable. Even if you or your attorney thinks the judge or jury is likely to rule in your favor, there’s no guarantee. The stress of the uncertainty can be overwhelming.

In mediation, you have more time to state your case than you do in a trial – and fewer rules to worry about limiting what you can say. In trial, the rules of evidence limit what you can talk about/bring into the case. In mediation, though, you don’t have those limits. You can talk openly – and you have more time to talk in a mediation, so you can make sure your voice is heard. 

Mediation Saves Money

Going to trial is quite expensive – often tens of thousands of dollars, whereas mediation is much less expensive (often only a few hundred or thousand dollars).

This is because, in order to prepare for trial, you usually hire an attorney and pay the attorney to do discovery, depositions, and to prepare a trial strategy. Then you also pay the attorney for his or her time during the trial. Plus, at trial, you can be hit with extra fees if you lose, such as the opposing party’s attorneys’ fees.

However, for mediation, only basic discovery or a few depositions may be done (or potentially not even that), which limits how much time and money you’re spending. 

Additionally, mediation is only a few hours – not a few days like a trial may be – so you pay an attorney for less time if you mediate. 

Since mediation can be done pre-suit, you also avoid the court fees in some cases, which saves you a few hundred dollars as well. 

Mediation Gives You Control 

During a trial, the judge or jury is in charge. You never know how the judge or jury might interpret things – or even whether they’re just having a bad day and not inclined to help you out.

In contrast, during a mediation, you’re in charge. The parties to the dispute are literally the ones in charge of:

a) Deciding how long the mediation continues for (when, at trial, this would be determined by the judge)

b) Deciding what topics are included in the conversation (when, at trial, this would be determined by the court rules)

c) Deciding what the final settlement will be, if anything (when, at trial, this would be decided by a judge or jury) 

Mediation Lets Your Voice Be Heard

In mediation, you’re given an opportunity to explain your case. You’re also given an opportunity to vent and let your voice be heard. 

That means you are empowered to speak your truth and say what you need to say.

Mediation is a safe place for you to be authentic and be heard. It’s an opportunity to make sure everyone involved understands your goals, interests, and intentions. It’s also an opportunity to have your perspective understood by both the mediator and the opposing party. 

Mediation Decreases Stress

Mediation is much less stressful than litigation for a number of reasons:

a) Mediation can be scheduled a lot more quickly than a trial, so you can try to resolve your case quickly and, thus, stress about it for a shorter time frame 

b) Trial can be very stressful. You’re trying to guess how other people will think. But in mediation people are allowed to express their thoughts, which keeps you knowledgeable about what people are thinking and, thus, makes mediation a less stressful process. 

c) Because you’re in control of whether your case settles during a mediation, you can relax a little, knowing that you’re the one in control. You are empowered during a mediation to decide what a good settlement option would be for you.

Conclusion

Mediation has a number of advantages. If you’re facing a legal dispute, then feel free to contact E-Mediation Services to see if mediation is the right way for you to handle your case! 

Mediation Defined

What is mediation? You’ve heard the term, nodded your head like you understand it, but still have no idea what it’s all about. If that’s you, then you’re in luck – because this blog post is for you!

Mediation’s Purpose

In a mediation, two (or more) parties who are fighting come together to try and reach a settlement on their own. But, because they’re fighting, they hire a neutral person to act as mediator. The mediator’s job is to help the parties communicate effectively with each other (to decrease the fighting) and to help them draft a settlement agreement if they do reach an agreement.

The mediator isn’t a judge. The mediator can’t force the parties to agree to anything. The mediator simply helps the parties talk to each other effectively and understand each other’s position so that, hopefully, the parties will reach an agreement on how to settle their dispute.

How Mediation Works

There are a few different phases in mediation:

First is the opening statement. This phase starts with the mediator explaining the process and rules of mediation. Then, the person bringing the complaint usually gives a brief opening statement explaining his position/view of the situation. After that, the person on the other side of the argument responds with his position/view of the situation.

Second, parties will usually caucus. A caucus session is when a person meets solely with the mediator – without the opposing party in the room. This is done so that the person can talk openly with the mediator. The mediator will often go back-and-forth between the parties, caucusing with each one repeatedly.

During caucus sessions, the mediator is passing messages between the parties. Such messages can include new settlement offers, new arguments and/or supporting evidence for such arguments, etc. With each of those messages, the mediator is able to talk to the parties about the strengths and weaknesses of their cases in order to get them to come closer to reaching a settlement.

The caucus phase is usually the longest part of the mediation. The mediator will go back and forth between the parties repeatedly until either a settlement is reached or until the mediator determines that no settlement is possible.

Third, the mediator will work with parties who reached a settlement to draft an agreement (AKA: contract) formalizing the terms of that settlement. Depending on the case, the mediator may have the form ready to go or may rely on the attorneys in the mediation to draft the agreement.

If, however, the parties don’t settle, then the mediator will conclude the mediation and let the parties continue either negotiating with each other or let them proceed with a lawsuit, whatever they want.

Scheduling a Mediation

Depending on the type of case, the parties may choose to go to mediation prior to even filing a lawsuit. In that case, they can schedule the mediation at their convenience.

If a lawsuit has already been filed, then there may be a set date by which mediation must be scheduled – and there may even be an assigned mediator. If so, then the parties must contact that mediator to schedule the mediation within the assigned time frame.

Finding a Mediator

Depending on the type of case, a mediator may either be assigned to the parties by the court or the parties may have an opportunity to select their own mediator.

If the parties have a chance to choose their own mediator, then they may select someone who they already know mediates or who they see is a certified mediator in their area. For example, in Florida, there is a list of certified mediators available at www.drc.flcourts.org. This list also states what types of cases each mediator is certified to handle.

Mediator Certifications

In Florida, mediators can be certified in different areas of the law: county court, circuit civil, appellate, family, and dependency. A mediator should only be mediating cases for which he is certified.

Mediators who are certified at the county civil court level mediate cases in which parties are arguing over $30,000 or less.

Mediators who are certified at the circuit civil level mediate civil cases in which parties are arguing over more than $30,000.

Appellate mediators handle civil cases that have been through trial and have been appealed to a higher court.

Family mediators handle cases related to family law issues, such as divorce and custody disputes.

Dependency mediators handle cases in which children have been taken from their homes or have special needs that must to be addressed within the family.

Conclusion

Mediation provides parties with a great opportunity to talk with one another – and the mediator – to figure out whether settlement is in their best interest.

Have any more questions about mediation? Feel free to email E-Mediation Services to request an answer to your question!

Rules of Mediation in Florida

If you’re going to mediation soon, then you should know that mediation has three big rules in Florida: 

  1. The mediation is voluntary.
  2. The mediation communications are confidential (with a few exceptions).
  3. The mediator must remain neutral and impartial throughout the duration of the mediation (since the mediator isn’t a judge and is just there to help the parties communicate effectively with each other). 

Each of these rules has been implemented in order to protect the parties. Mediation is all about the parties’ self-determination, meaning that they are the ones guiding the mediation process and the ones who are in control of the mediation process at all times. These rules help to preserve that self-determination. 

Let’s look at each of the rules in detail so that you can understand how it applies to mediation. 

Mediation is Voluntary

Parties choose whether to go to mediation. In the case of a dispute that hasn’t been filed in court yet, parties who wind up in mediation literally choose to go to mediation in order to try and settle things before having to file a lawsuit. 

In situations where parties have filed a lawsuit and are ordered to appear at mediation, the situation is slightly different. Parties must appear at mediation if that’s what the court ordered. However, parties don’t have to participate in the mediation process. They can listen to the mediator’s opening statement and then tell the mediator they don’t want to mediate. In that situation, the case will proceed to trial. 

Also, if parties are in a mediation and someone starts to feel uncomfortable for any reason (e.g, they feel unsafe, they don’t believe the mediation is proving to be productive, etc.), then a party can ask the mediator to terminate the mediation right then and there.

The voluntary nature of mediation applies throughout the entire mediation process, so parties are always in control – and always have the choice to continue with a mediation (or not). 

Mediation Communications are (Mostly) Confidential 

Since the purpose of mediation is to get parties to speak openly with each other so that they’re likely to reach a settlement, most mediation communications are confidential. That way, people can speak freely in a mediation, let their true concerns be known, and hopefully reach a settlement. 

For example, settlement offers conveyed at mediation are confidential. Even if the parties don’t settle that day, those settlement offers can’t be repeated in a later trial. Nobody can say, “At mediation, he offered to pay me $100,000!” or “At mediation, he admitted fault!” 

The confidential nature of mediation communications applies to any oral or written statement – or even non-verbal conduct intended to make an assertion – that identifies anything people outside of the mediation wouldn’t be able to find out about. (So, as an example, mentioning that “The sky is blue” in mediation doesn’t make that information confidential because people outside of the mediation can discover that.) 

There are, however, a few exceptions and exemptions to the rule of confidentiality. For example, if there’s a statute, court rule, agency rule or order requiring certain information to be disclosed, then the parties should be notified of such rule/order and will have to keep in mind that certain information mentioned in the mediation may not remain confidential. 

Also, if there is a claim of professional malpractice (e.g., a party thinks his attorney acted inappropriately during the mediation), then the statements made in mediation that are related to that malpractice claim are excluded from the confidentiality provision. 

Additionally, if someone mentions that he is: (1) planning, committing, or attempting a crime; (2) concealing ongoing criminal activity; (3) threatening violence of some sort; or (4) abusing a child or elderly person in any way, then that information does not have to remain confidential. 

Another key exception is that the parties can choose to exclude certain information from the confidential nature of mediation. Since the parties’ self-determination is the cornerstone of the mediation process, if the parties choose to exclude information from the confidentiality rule, then that information can be disclosed in the way the parties agreed to. 

One thing most people don’t realize about the confidential nature of mediation is that, even after a mediation results in a settlement, the parties (and mediator) can’t go home and start detailing the mediation communications to their significant other, family members, or friends. 

Caucus Communications are (Mostly) Confidential 

During the course of the mediation, the parties may meet with the mediator separately (in a one-on-one scenario). Those one-on-one sessions are called caucus sessions. The information each party discloses to the mediator during their caucus sessions is confidential too. That means the mediator cannot tell the other party what was said in your caucus session – UNLESS the mediator gets permission from you to tell the other party. 

Many mediators will ask at the beginning of the mediation if they can, in their discretion, use the information you tell them in caucus as they see fit in order to help the mediation progress. If you agree to this, then know that your mediator will have the ability to repeat any information you tell him in caucus when he goes into a caucus session with the other party. 

Of course, you can always tell your mediator during a caucus session if you’re mentioning something you don’t want him to repeat to the other side. The mediator is then prohibited from disclosing that information to the other party. Just don’t forget to tell the mediator what information you want to keep confidential. 

Mediators Must Remain Neutral and Impartial 

The mediator is not a judge and cannot force the parties to do anything they don’t want to do. Similarly, the mediator is not an advisor for either party. The mediator is simply present to help two people who are fighting communicate effectively with each other. 

Consequently, the mediator cannot take sides. Since the mediator has to go back and forth between the parties and keep information confidential for each party, the mediator acts like a neutral filter of information. He is required to remain neutral and impartial throughout the duration of the mediation. 

As a result, the mediator cannot answer questions about whether an offer is good, bad, or ugly. A mediator cannot weigh in on who he thinks would win in a court case. A mediator must be unbiased throughout the mediation process so that he doesn’t become an advocate for one party (which would then be detrimental to the other party). 

Conclusion

These three rules serve as the basis of mediation in Florida. The rules combine to preserve parties’ self-determination in mediation so that they remain in control of their case and empowered to make decisions on their own behalf.