Mediation in a business lawsuit

Parties in a Florida civil lawsuit are required to mediate before they can go to trial. Trials can be an uncertain and expensive process. Mediation allows the parties and their lawyers to meet confidentially with a mediator to discuss whether they can resolve their dispute. No one decides who is right or wrong in mediation.

How does mediation work

The mediation process is very flexible. Mediation can occur before a lawsuit or during the proceedings. Before and in a suit but before the case has been noticed for trial usually one side will suggest mediation. If the case has been noticed for trial, then the Court normally mandates mediation. The lawyers agree on a mediator and set the location and date for the mediation. Each lawyer then has the chance to send a confidential mediation summary to the mediator. That summary gives the mediator the perception of the case from each side. Unless told to do so the mediator will not share a summary with the other side.

At the mediation the parties usually start together with the mediator in a conference room. The mediator will explain that the process is confidential. The mediator will also clarify that he or she is not charged to decide the case but is there to listen to both sides as an objective party to help them resolve their dispute. After that each side states their view of the case. More often the lawyers give this opening statement, but the parties can speak and depending on the case it is sometimes helpful to do so. After the openings the parties retire to separate rooms with counsel. They then meet privately with the mediator.

When meeting privately with each side the mediator helps them see different views of the dispute. The mediator also helps them determine their limits for settlement. Mediators naturally have different styles. Lawyers may feel that certain mediators are better for certain disputes. Thus the selection of the mediator is made with counsel.

As to payment generally each side pays the mediator equally at the end of the mediation and regardless of the outcome. Mediators send an engagement letter to the attorneys before the mediation defining their terms. Like lawyers, mediators usually charge by the hour and the parties agree to that rate before the mediation.

When do you mediate in a lawsuit

You can mediate any time and as many times as you want. Some disputes lend themselves to early mediation. Some require more documentation of the evidence before a meaningful settlement discussion is possible. The question of when to mediate is a decision you make with your attorney. But whether to mediate is not normally an option because judges usually require it in each case. Judges know that even in a mediation that do not result in a settlement the mediation can set the groundwork for amicable resolution later.

What is the purpose of mediation

The purpose of mediation is not just to generate a settlement. The purpose of mediation is also to give the parties a chance to explore options that the Court cannot offer. Mediation gives the parties back control of the outcome of the dispute. Courts primarily award money as damages depending on the case. But the parties might agree to swap assets or want a noncompete or other agreement that may mean more than a money judgment to them. A Court cannot normally award those in an average case. Thus mediation gives the parties an opportunity to craft unique solutions to their business dispute that may be beyond what they would realize from the lawsuit process.

Conclusion

Mediation is beneficial in each business dispute. It is confidential and affords the parties the freedom to resolve their differences in a way they deem acceptable. If parties cannot settle their lawsuit, then a judge or jury makes the decision for them. Despite their best efforts that decision may be beyond the control of both parties. By designing a settlement through mediation each party can control the outcome of their dispute and reach an acceptable resolution.

Written by David Steinfeld

David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for almost 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.

Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.