MaryAnn Aiyer, Alternative Dispute Resolution Director
Email: maiyer@circuit5.org
Mediation is often mandated in a civil or family case before a case is allowed to go to trial. This gives the parties an opportunity to settle the case before going to trial saving both time and money.
A County Court Civil case is a legal action filed in county court to settle legal disputes among parties where the dollar amount involved is $8,000 to $50,000, excluding costs, interest, and attorneys’ fees. Mediations for county civil claims are set either at a pretrial or by an Order of Referral to Mediation. The court’s mediation is able to mediate cases where the dollar amount involved does not exceed $15,000.
Domestic Relations Mediations involve dissolution of marriage (divorce) or paternity cases. Matters for mediation may include division of marital property, timesharing of minor children, and child support.
The revised, amended Order of Referral to Mediation encompasses the recently amended Florida Family Law Rules of Procedure which become effective July 1, 2023. The domestic relations Judges and Court Mediation Services are requesting this order be used for mediations occurring July 1, 2023, and thereafter. This order provides for the continued provision of remote mediation for domestic relations cases.
A Small Claim case is a legal action filed in county court to settle minor legal disputes among parties where the dollar amount involved is $8,000 or less, excluding costs, interest, and attorneys’ fees. Mediation for Small Claims cases is scheduled through a court order.
A dependency court case is a case involving the welfare and/or safety of children. Mediation is an opportunity for the parents and agencies to make decisions about their case plan and children. Mediation for Dependency cases is scheduled through a court order.
County civil cases with an amount in controversy over $15,000, circuit civil cases, and domestic relations cases where the parties have a combined annual income over $100,000 are ineligible for the court’s subsidized mediation program. Those cases must use a private mediator. Private mediators may be found on the State of Florida’s ADR website.
We are happy to provide certification mentorships for prospective mediators who live or intend to mediate in the counties of the Fifth Judicial Circuit (Citrus, Hernando, Lake, Marion, Sumter). We have availability for county, domestic relations (DR), and dependency (DP) observations. The Fifth Circuit does not conduct circuit civil mediations and does not have availability for those observations. Most county mediations are conducted in person while DR and DP mediations are remote. DR and DP observations may be limited to two mediations per person. To schedule observations, complete the observation application and return it to Maiyer@circuit5.org. When submitting the application for county observations, indicate your preferred counties. For DR/DP, indicated your days/times of availability.
According to section 44.1011(2), Florida Statutes (2017), “mediation means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.”
According to Florida Rule for Certified and Court-Appointed Mediators 10.210, “mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.”
The statute and rule define mediation as a process which encourages and facilitates dispute resolution by using a mediator who must have no connection to the case, must be able to remain impartial throughout the process, and must encourage the parties to make their own decisions.
In mediation, the parties are not limited to only discussing issues raised by the pleadings. They may discuss any issues which they choose to discuss.
While mediation may be ordered by the court, section 44.102, Florida Statutes, it may also be voluntarily initiated by the parties either before or after filing a lawsuit. Further, there are statutes that call for mediation when no lawsuit is pending.
The court may order a part or all of a case to mediation. In that case, the parties must attend the mediation but they are not required to come to an agreement. If a party fails to appear at a scheduled mediation without first having obtained the court’s permission, sanctions may be imposed by the Court upon motion by an opposing party or on the court’s own motion.
Research has shown that bringing people together with a neutral person gets them to talking. This may lead to settling their dispute even if previous attempts were not successful.
There are statutory provisions, ethical rules, and procedural rules which apply to court ordered mediations and to all certified mediators regardless of the setting. Parties of a case ordered to mediation should familiarize themselves with these statutes and rules.
Confidentiality and self-determination are extremely important to the Court. The Florida Supreme Court has adopted rules relating to self-determination of the parties and confidentiality.
According to Florida Rule for Certified and Court-Appointed Mediators 10.420, “upon commencement of the mediation session, a mediator shall describe the mediation process and the role of the mediator, and shall inform the mediation participants that:
The parties will then be encouraged by the mediator to negotiate the issues in an attempt to resolve their disagreement.
A mediator facilitates negotiations.
Mediation is confidential.
Mediation agreements are enforceable.
Mediation gives the parties flexibility.
Mediation is not an adversarial process.
Settlement decisions are made by the parties.
Mediation may result in less time, cost and stress than litigation.
The Parties are in control of the outcome.
Mediation is an opportunity for understanding.
1. A mediator facilitates negotiations
Mediation uses a neutral person who is not connected to the dispute. This person assists the parties with communicating and discussing their issues. Even when the parties were previously unable to work out their issues, the impartial mediator can often assist the parties. The mediator guides the negotiation process and gently assists the parties in breaking down the barriers to resolution. This often helps the parties reach a settlement agreement.
2. Mediation is confidential
All mediations in the Fifth Circuit Mediation Program are confidential. Confidentiality is designed to make it safe for the parties to discuss all issues without fear of the information leaving the room. This means participants are not allowed to share a mediation communication/conversation with someone else unless they have the permission of all parties. It is important to note there are some exceptions to confidentiality, and the mediation agreement is usually not confidential.
3. Mediation agreements are enforceable
If, during a mediation, a written agreement is signed by all parties, that document becomes legally enforceable by the Court.
4. Mediation gives the parties flexibility
Mediation provides an opportunity for creative solutions. The parties may tailor a settlement agreement specific to their interests and individual needs. With mediation, the parties can craft a win-win resolution.
5. Parties are in control of the outcome
Mediation differs from legal actions in which the judge or an arbitrator makes the decisions. In mediation, the parties make the decisions. This concept is referred to as self-determination and is highly valued by the courts in Florida. The mediator cannot give legal advice nor express opinions as to how the court will rule. The mediator can explore alternatives with the parties and is there to may facilitate the communication of the parties in an effort to assist them with a voluntary resolution of their issues.
6. Mediation may result in less time, cost and stress than litigation
Mediation often takes less time than litigation. Mediation may result in an agreement within a matter of hours. A court proceeding may take months or years. As a result, mediation can be less costly in money and emotions for the parties. Even if only a partial agreement is reached at mediation, court time and fees required to decide the remaining issues may be less.
7. Mediation is an opportunity for understanding
Mediation may be the first time the parties all sit down together to hear each other’s perspective on the issues. Even if there is no agreement, the parties will have a better idea of what brought them to this point and what might be done to bring about a settlement with which all parties can be comfortable.
8. Mediation permits the parties to discuss issues not in the court tile
Another advantage of mediation is that the parties are not limited only to those issues addressed in the court files. Upon agreement of all the parties, any other issues can be discussed and resolved. This can make mediation a more satisfying and holistic method of resolution of the matter for the parties.