Your Mediation Questions Answered

We had such an overwhelmingly positive response to our February 21st webinar, “The 10 Most Common Questions Asked About Mediation”, in which we devoted the presentation to answering your questions as well as questions which frequently arise in mediations, that we decided to blog some of questions as a supplement to the program. The webinar, approved for 1.5 hrs. FL Bar CLE credit,  is now available for downloading from our website.
Please feel free to respond to the blog or contact us directly with your questions or comments.

 Kimberly Sands, Richard Lord, and Sandy Upchurch

  Do Florida Courts have a mandatory mediation program or practice and if so, is it successful ?

While not mandatory, by application of custom, practice, and local rules, most civil cases filed in Florida will be mediated by agreement or order at some stage in the dispute. Chapter 44, Fla. Stat., addresses mediations generally in Florida.  Under § 44.102,  a court must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless: The action is a landlord and tenant dispute; filed for the purpose of collecting a debt; medical malpractice; the action is governed by the Florida Small Claims Rules; the court refers the action to nonbinding arbitration under this chapter; the parties have agreed to binding arbitration; the parties have agreed to an expedited trial pursuant to § 45.075; or the parties have agreed to voluntary trial resolution pursuant to § 44.104. Courts may refer to mediation all or any part of a filed civil action for which mediation is not required under this section. Rule 1.700, Fla. R. Civ. P., et seq., allows the court and the parties to “compel” mediation subject to court-order or agreement by the parties.

Mediation can be required by statute or contract.  For example, mediation is mandatory in medical malpractice cases under § 766.10(1); the time period -120 days after suit is filed- can be extended by the parties, but not waived unless the parties have agreed to binding arbitration.

The United States District Courts for the Middle, Southern, and Northern Districts of Florida all have Local Rules for Mediation which in practice, result in the referral of many cases to mediation by court order. The 5th District Court of Appeal has a court-mandated mediation program and the 11th Circuit has its own internal mediation program for disputes on appeal from the federal courts within its jurisdiction.

Is it successful? Most cases settle before trial, but the collective opinion and research seems to suggest that cases settle earlier and with greater client satisfaction when settlement results from mediation.

Kimberly Sands
Upchurch Watson White & Max


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