What is Mediation and Why Should I Do It?
By Bill Christopher, Mediator
What is Mediation?
Mediation is a voluntary process that can be used at any stage of litigation to reach a settlement. The two (or more) parties, with their attorneys, meet with a person who is skilled and trained as a mediator. It is the mediator’s job to facilitate a settlement between the parties.
The techniques employed by the mediator include (i) holding a plenary session with both sides present where each side explains its case to the other; (ii) holding caucuses with each side alone to find out that parties’ goals and interests; (iii) suggesting innovative ways that both sides’ goals and interests may be accommodated.
This is not a quick and easy process. The parties must approach mediation with open minds and a desire to put the dispute behind them. Resolving the dispute is like making a business decision. What is in my best interest today?
Why Should I Mediate?
During mediation, you are in charge: you gather information, you direct the negotiation, and you make the decision. After mediation, you no longer control your own destiny. If you are in litigation, a judge or possibly a jury controls the outcome. If you are in arbitration, an arbitrator (or possibly a panel) controls the outcome. You (and your attorney) can only present evidence and argument and hope for the best.
At the mediation, it is important to assess the cost to you of the process if you do not settle. Has your lawyer estimated his cost to you in the litigation? (and that of expert witnesses, discovery depositions, copying documents, etc.?) If she/he has not done so, the mediator usually asks that such a calculation be made. Also, how much of your time and that of your key staff will be required? Quantify this amount! If you lose, will you have to pay the other side’s attorneys’ fees and costs? What are the chances of this happening? Put a price tag on it!
This is not a ‘worst-case scenario.’ It is an honest evaluation of your future costs if you do not settle now. Settlement will avoid these costs.
There is another, larger consideration. Litigation can only produce a money judgment in most cases. Arbitration can only produce an award of money. Mediation can produce a settlement that contains other things. Sometimes the parties want to continue to work together. Mediation can facilitate this goal. Litigation or arbitration often destroys the relationship. I once settled a case at mediation by having the plaintiff purchase a completely different piece of property from the defendant at a discounted price (the discount approximated the plaintiff’s damages). It was a win-win settlement that litigation could never have produced.
When Should I Mediate?
Early and often! Sometimes your agreement requires mediation as a prerequisite to bringing a lawsuit or to commencing arbitration. This is a good thing! Early mediation and settlement avoid the most costs. Often, it is easier for the parties to reach a settlement before they have invested heavily in the litigation. If the parties have an ongoing relationship, early mediation and settlement has the best chance of saving the relationship.
In Florida, the courts require almost all civil cases to be mediated before a trial date is given. This is usually after discovery procedures have been conducted, but not always. The parties may choose a mediator or the court will appoint one.
Even if the case does not settle at the first mediation, I encourage the parties to continue talking and to come back to me if they are close or believe that one more session will do the trick. I never give up!
Whom Should You Choose as a Mediator?
In Florida, the Supreme Court certifies mediators who have taken a minimum of 40 hours of training and have observed or co-mediated (with a certified mediator) four to six cases. Florida requires mediators to attend continuing education classes each year. Florida mediators are certified in circuit/civil, county, family, or dependency (some are certified in more than one area). Obviously, you should choose a mediator certified in the area of your dispute.
Lawyers (for the parties) usually choose mediators with whom they are familiar and who have produced good results in the past. Each circuit court has a list of certified mediators in its circuit. So does The Office of State Courts Administrator, Dispute Resolution Center in Tallahassee (850-921-2910). The American Arbitration Association has its own roster of mediators.
Should your mediator be an ‘expert’ in the area of your dispute?
It depends. If such a mediator is easy to find and has the right credentials, then ‘yes’. However, my opinion is that it is much more important to have a mediator who is competent at ‘mediation’ rather than the subject of the dispute.
About the Author
William Christopher, a partner at Maglio Christopher & Toale, PA, is a mediator for the American Arbitration Association (AAA) and is a Florida certified circuit/civil mediator. Over the past decade, Mr. Christopher has mediated (as a mediator) over the over a hundred cases, both as an AAA mediator and privately. Bill had participated in mediations as an advocate for a party for over 30 years.
Mr. Christopher has been a trial attorney handling complex civil cases for 40 years. He is Board Certified by The Florida Bar in both Construction Law and Business Litigation Law and is certified by The National Board of Trial Advocacy in Civil Trial Advocacy. Mr. Christopher is a member of the Florida Circuit Civil Mediator Society and is presently chair of The Alternate Dispute Resolution Committee of the Sarasota County (Florida) Bar Association.
The Maglio Christopher & Toale, PA offices contain two (2) large conference rooms that easily accommodate mediations. There is no extra charge for their use when Mr. Christopher is retained as the mediator. Contact him at 941-952-5242 with questions or to schedule mediation