What makes a good mediator

A good mediator has enough experience to bring a useful perspective to the dispute but patiently listens to each side explain their position and voice their concerns. A good mediator is a person that projects a position of neutrality and has a temperament that calms the mediation conference allowing cooler heads to prevail.

Mediation is not only for lawsuits

It is useful to understand the space that mediation occupies in a dispute to bring perspective to how to select the right mediator. Mediation is not exclusive to lawsuits. Mediation can be done privately outside of a lawsuit in what is called pre-suit mediation. It can also be performed in connection with an arbitration. So it is more appropriate to address mediation in the context of a business dispute rather than a business lawsuit given that it can occur independent from litigation.

Mediation is a unique process by which an impartial mediator tries to help the parties reach a resolution without dictating what that resolution should be. The important concept to bear in mind when considering the mediation process is that it is you who always makes the decision of whether to settle and the terms of any settlement. Mediators do not decide those issues. If the mediator decided the outcome then the mediator would be a judge or arbitrator.

The real purpose of mediation

So if mediators do not decide your dispute or the terms of any settlement, then what is the purpose of mediation you ask. The real purpose of mediation is simply to allow the parties to confidentially discuss their dispute with someone who is not directly involved in the dispute and who will not judge or decide their dispute. While mediators can suggest settlement terms the decision of what to accept always lies with each party.

Mediation is fundamentally about creating options. A mediator with significant trial and business litigation experience can draw on that experience to bring options to the parties. When parties to a dispute enter mediation they have only their dispute and the option of taking that before a judge, jury, or arbitrator to decide it for them. Whether they realize it or not parties to a business dispute take an important first step by agreeing to mediate and move themselves halfway toward their goal of amicably resolving their dispute.

How does mediation mechanically work

Mediation is informal and non-adversarial. The mediator is there to assist you in identifying the issues and to guide you in exploring alternatives to what you have when you start the mediation.

At the start of any mediation, the mediator will explain to the parties that mediation is confidential in Florida. The mediator will inform the parties that everything they tell the mediator is confidential unless they want the mediator to share that information with the other party.

After the mediator gives any initial explanation of the process to the parties each side can make an opening statement or presentation. Because the meeting is not formal like a courtroom and the parties are there of their own desire the mediator will remind them that they should respect each other by listening to the other side and not interrupt them in their opening.

The mediator should also try to facilitate a settlement that resolves the dispute either in full or in part.

What is a good settlement

Settlements are unique to every dispute and very subjective but a good settlement is usually defined as one where one side gives up more than they want and the other accepts less than what they desired. That means that a settlement is a compromise which is good because it allows the parties to take control over the outcome of their dispute instead of leaving that to someone else to decide.

While a compromise may not be what a particular party initially thinks they want or need a compromise in mediation allows them to save time, money, and energy by concluding the dispute at the mediation.

What if I don’t settle at mediation

The goal every mediation is to resolve the dispute in a settlement or at least to develop the foundation for that later in the dispute. However because the parties make the decision of whether to settle and emotions can impact the dispute not all mediations result in a settlement.

If you do not reach a settlement in mediation in a lawsuit then the mediator files a report with the court stating only that the parties conducted a mediation and that no settlement was reached. This is called an impasse and that is all the court knows of the process because mediation is confidential in Florida. Your case will then continue as before but that does not preclude you from mediating later in the case or settling directly with the other side. Thus while a mediation conference may not result in a settlement it can still develop the foundation for a settlement later and thereby provides a benefit to the parties in their dispute.

If you do reach a settlement in mediation then the parties normally document that in a written agreement that the parties and their attorneys sign. The mediator then files a report with the court indicating that the parties mediated and it resulted in a settlement. Unless you file your settlement with the court or make it public the terms of your unique settlement remain between the parties.

What kind of mediator do you NOT want

Despite the reality that business lawsuits are fundamentally business disputes between businesspeople and those people are accustomed to making and transacting deals and compromises they are nevertheless emotional about their dispute. This is because once the parties reach mediation they have gone beyond resolving it between themselves and have resigned themselves to the fact that they are right and the other side is wrong.

A mediator that feeds those negative emotions only promotes the dispute. That often does not develop alternatives with the parties that are required to reach a resolution. So a mediator who takes one side over the other or argues the case of one party against the other is likely not going to optimize the opportunity for the parties to see alternatives and resolve their differences. That is not to say that playing devil’s advocate in a mediation is not appropriate but only to highlight that parties selecting a mediator should consider the temperament and experience of the mediator in deciding if that person is a good fit for the mediation of their dispute.

Who’s the best mediator for your dispute

There are many experienced, trained, and qualified mediators in Florida to help you resolve your business dispute. With over 25 years of experience and being one of the few attorneys in Florida who is Board Certified in business litigation, David Steinfeld has mediated scores of disputes for clients and can bring the wisdom gained from that depth of practical experience to your dispute as a mediator. Mediators need not be Supreme Court certified in order to mediate for parties in Florida and because David Steinfeld is not a professional mediator who only mediates disputes he brings the unique and beneficial perspective of an active and practicing lawyer to any mediation.

Dave Steinfeld also leverages technology in his private practice as well as in mediations so you can use remote video technology to privately and efficiently conduct a mediation without leaving the comfort of your office or home or wherever your travels take you. Mr. Steinfeld also makes his mediation rates competitive and reasonable so that mediation is cost effective as well.

For your next mediation consider utilizing Board Certified business litigation expert David Steinfeld as your mediator. He will help the parties understand options they may not have considered and will help them to resolve their dispute on their terms.

Written by Board Certified business lawyer David Steinfeld

David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 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.