Mediation Frequently Asked Questions

Mediation is:

• An approach that allows people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of a
• The mediator does not decide right or wrong or to tell you how to resolve your
• In mediation, the parties try to find solutions to resolve some or all of the concerns that make sense to both

The goal is to reach an agreement however, whether you arrive at an agreement is something you decide.

Sometimes emotions run high. In these instances, the mediator can assist in easing the way for communication. Even if you have already tried to talk it out or negotiate with the other or party, a mediator can help both parties listen to each other and stay focused. A mediator is there to help both sides communicate and explore possible solutions. If you and the other party get stuck, the mediator can sometimes restart the conversation in a new way and help everyone take another step forward. The mediator is there as a neutral person to help keep the focus on solving the dispute; however, the mediator is prohibited from providing therapy, counseling or legal advice.

Unlike trials and hearings, which are held in public, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered and/or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act, sections 44.401 – 44.406, Florida Statutes).

The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either a) the parties agree it will apply or b) it is mediated by a certified mediator. The goal is to allow you and anyone at mediation and their lawyer, if any, to talk about legal and non-legal issues without fear of others, including the judge, hearing about it.

While most things said during mediation will be confidential, there are some exceptions. Three main examples of these exceptions are: child abuse, elder/vulnerable adult abuse, or anyone saying that they are committing or planning a crime.

However, a signed mediated settlement agreement is not confidential unless the parties agree it will be confidential and the law allows the agreement to be confidential. Instead, the agreement may – and in some cases MUST – be put in a court file.

Mediation is neither a trial nor an arbitration.

In a trial, the parties present evidence and argument so a judge or jury decides the outcome of the dispute.

In arbitration, the parties present evidence and arguments. An arbitrator or panel of arbitrators decides the outcome of dispute.

Mediation is different from a court trial and arbitration, where generally, there is a Winner and a Loser.

In mediation, the mediator helps the parties talk about their dispute and find or explore mutually acceptable resolutions. If you reach an agreement at mediation, you do not have to go to trial or arbitration.

Mediation is a process that allows you to be creative with your solutions. If both sides agree, you can reach a settlement agreement specific to your individual needs. With mediation, both sides can “win”. If you resolve the dispute in mediation, you are not gambling on what the judge or jury might decide. It is uncertain what decision will be made at trial, but you will be bound by that decision whether you like the outcome or not. At mediation, the parties make the decisions.

A mediator helps you talk with the party with whom you are having a dispute or conflict. The mediator does not make decisions for you. The mediator is a neutral and impartial guide to help you come up with possible solutions, stay on track, and clarify areas of agreement and disagreement. The mediator may help you and the other party see the conflict from each side’s point of view.

A mediator is not there to provide therapy, counseling, business or legal advice. While mediation is a good place to recognize the emotions that may be driving the dispute, the mediator is there to help you focus on resolving your dispute.

In cases where the mediator is not appointed by the judge, you may wish to consider any number of factors or resources such as:

• The mediator’s background, training, and experience with mediation and/or with your type of case
• Search the Florida Supreme Court mediator database
• Recommendations by your attorney
• Ask friends or trusted colleagues
• Visit the websites of Mediators
• Visit statewide organizations’ websites
• The fees the mediator proposes to charge

By far, the main advantage is that the parties decide the outcome, not a 3rd party (judge, jury, arbitrator). Since mediation is a discussion between the parties, it also can be much quicker than the formal trial process. Thus, it may also cost less than going to court – in both dollars and stress.

In addition, during mediation, you are talking with the other party, the mediator, and your attorney, if you bring one. This interaction promotes a better understanding of the action(s) that lead to the conflict. Sometimes when the parties understand the “why” of the other person’s action(s), it helps create a desire to resolve the dispute.

Court-ordered mediation must begin with an introduction by the mediator, explaining the process and the role of the mediator. Among other things, the mediator will explain that the parties make the decisions, not the mediator. The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concern(s). If you have an attorney and he/she is with you at mediation, these opening remarks may be made by you, your lawyer, or both of you.

After the initial procedures, how the mediation is conducted varies. The mediator usually will meet with both parties together to discuss the issues to help you work out your differences. The mediator may also meet with each party privately.

Generally, unless you give the mediator permission to repeat what you say in private breakout sessions, the mediator is prohibited from sharing what is discussed.

If you are represented by an attorney, you and your attorney will decide how the two of you will interact during the mediation. Some attorneys prefer that their clients not talk during mediation. If this is what you and your attorney decide, that is fine; however, it is important for you to know that you ARE allowed to speak to the mediator at any time.

Eventually, the mediation will end in one of three ways, either:

1) the parties reach an agreement as to some or all issues – all parties, and their lawyers if present, must sign the agreement;

2) the mediator declares an impasse because you, the other party, or both are unwilling to continue discussing resolution; or

3) the mediator, with the parties’ consent, continues the mediation session by adjourning for the day.

If an agreement is reached, the written agreement becomes a legally binding document (contract), which is enforceable by the court. If the mediator declares an impasse as to some or all issues, then you and the other party will have to go back to court to have the judge or jury (if there is one) decide your case.

Before you attend a mediation, there are a few things you can do to prepare yourself and help make the mediation more beneficial to you:

1. Get legal advice: A mediator cannot give any legal advice to any parties. If you are not currently represented by an attorney but have legal questions about your case, including what you value your case at monetarily or what to accept as a “good” settlement, you should contact an attorney before the mediation, so you make an informed decision about settling your case.
2. Get organized: Go over all of the information that you have and organize It may be helpful to list events in chronological order. Gather any documents about your issue and put them in a folder to bring with you to the mediation. If you have an attorney, talk to your attorney about your case and mediation. Your attorney may be able to provide you with even more information on what to do during the mediation
3. Come prepared: Be prepared to talk to the other party in the Even if you have had problems talking to the other party on your own, the mediator is there to help with communication.
4. Understand the dispute: Get the issues straight in your mind. If it helps, write the issues down. Think about which issues are the most important to you, as well as which issues are least important. Also, think about what may be most and least important to the other person or party.
5. Set goals: Think about what you really need to resolve the case or dispute. Set realistic goals to guide you in your decision making, it is important to remain open-minded and flexible because you may learn new information at the mediation that could change your mind.
6. Get to the mediation on time: It is important that you arrive on time. There are things you should consider in order to be on time including where the mediation is located, traffic and parking. If possible, prior to the mediation, drive to the location so that you know the way. Getting lost can rattle and fluster you which is not a great way to start a mediation. Give yourself plenty of time as traffic can be unpredictable. Parking can be difficult at many Find out in advance what parking is available, where it is located and the cost.
7. Arrange for childcare: If you have children who must be cared for, you should arrange for a babysitter. Often courts and other mediation meeting places do not have anyone to care for children and children are generally not allowed in a mediation.

Some of the above information may be found at Florida Courts website: https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida (October 22, 2018).

David Rogers, The Employment Mediator, is a Florida Supreme Court Certified Circuit Civil, Family, County and Appellate Court Mediator. David is also a career Human Resources professional with six (6) professional certifications. In addition, he is a trained professional leadership & career development coach and a Florida licensed private investigator.