What to expect in Mediation
If a court has issued an order directing you to mediation, you must “appear” at the mediation. Appearance is defined differently depending on the kind of case.
In small claims cases (cases involving less than $5000 in dispute), the mediation rules allow an attorney to attend the mediation on behalf of a party. However, if your attorney attends the mediation without you, the attorney must have full authority to settle the case, without talking to you. The rules also allow a nonlawyer representative to attend the mediation for a named party if the nonlawyer has your signed, written authority to attend and full authority to settle the case without talking to you. Link to Rule 1.750(e).
Keep in mind that it is generally helpful for the decision maker to be at the mediation and actively participate. One of the benefits of mediation is that you have an opportunity to hear from the other side and maybe get some insights into the other party’s perspective. In addition, if you send someone in your place, that person may make an agreement without consulting with you.
**NOTE**: The appearance requirements for “pre-trial” in small claims cases vary from county to county. In some counties, the “named parties” must appear at the pre-trial conference with the judge. Failure to do so may result in a dismissal of your case or a default judgment. You should check with the clerk of court to determine who must “appear” at the pre-trial to make sure you comply with the requirements. Link to rule 7.090, Small Claims Mediation Rules and list of clerks websites
In civil (non-family) cases, including county court cases above small claims (cases between $5000 and $15,000) and circuit court level cases ($15,000 and over), the following people must physically attend the mediation:
In family cases, the “named parties” must be physically present at the mediation. Your attorney is allowed to attend with you, but is not required to attend with you. Rule 12.740(d)
For dependency cases, check the court’s order to mediation to see who must attend the mediation and if anyone is prohibited from attending the mediation. The rules allow additional people to attend the mediation, even if the court has not named them, if all parties agree. Rule 8.290(l)(1) Whoever attends the mediation for the Department of Children and Families (DCF) and Guardian ad Litem (GAL), must have full authority to enter into a binding agreement. Rule 8.290(l)(2)
All Cases: The court may apply sanctions (for example, hold someone in contempt of court, require the party to pay the mediators’ fees for both parties or the other parties’ attorneys fees) if a person required to attend the mediation with full authority fails to do so without “good cause.” Rules 1.720(b); 8.290(l)(5); 12.741(b)(2)
The first meeting must begin with an introduction by the mediator explaining the process and the role of the mediator. The mediator will explain that the parties make the decisions, not the mediator. The mediator will also explain that what is said during mediation is generally confidential. That is, in general, you can prevent anyone present at the mediation from telling the judge about what each other said or admitted to in mediation. However, there are some exceptions. If you are represented, you should talk to your lawyer in advance of the mediation for a complete explanation. Include link to confidentiality statute [put confidentiality and exceptions in lay terms?]
The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concerns. If your lawyer is with you at mediation, these opening remarks may be made by your lawyer or by both of you.
After these initial procedures, the process of the mediation varies. Often the mediator will meet with both parties together to discuss the situation and attempt to help you work it out through discussion. The mediator can help the parties express themselves while keeping interruptions to a minimum. The mediator may also meet with the parties individually in a separate meeting, often called a caucus.
While you cannot be forced to remain at the mediation, mediators will encourage you to give mediation a chance to succeed.
If a total or partial agreement is reached, it will be written and the parties (and their attorneys) will all sign the agreement. This agreement will be binding and enforceable just like any other contract. Mediated agreements are not confidential unless specifically stated otherwise. 44.405(4)(a), Florida Statutes. In court ordered cases, the agreement will have the power and effect of a court order.
If you would like watch a video of a sample mediation please choose this sample video link. [add link]
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