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!
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.
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.
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!