Serving Brevard County, Melbourne, Florida and surrounding Areas
Mediation is a form of alternative dispute resolution (ADR) for resolving disputes between two or more parties. A mediator is a third party neutral whose job is to assists parties to negotiate their own settlement to a given dispute.
Unlike arbitration, the outcome of a mediation is determined by agreement of the parties. The mediator is in charge of the process, but the parties determine the content of what will be mediated. If the parties are unable to resolve their dispute, the mediator is required to declare an impasse in which case the parties proceed with their dispute usually through the Court or Arbitration system.
ADR has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. Different mediation rules and processes apply to different jurisdictions, but in Florida, generally, mediation is mandated prior to a trial.
Additionally, in Florida, there are different certifications to be a mediator. The Florida Supreme Court certifies different types of mediators for different types of cases. The general certifications are Family Law, County Court, and Circuit Court. Recently, due to the large numbers of Foreclosures in Florida, Foreclosure mediation certification has been implemented to address the various lender / borrower issues promulgated by the current state of the economy.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediator must be wholly impartial and not have an interest in the resolution or prosecution of the case. Maurice Arcadier is a Florida Supreme Court Certified Circuit Court Mediator and Certified in Foreclosure Mediation. Mr. Arcadier provides mediation services in Brevard County Florida. Mr. Arcadier’s mediation facilities are located in Melbourne, Florida and he is also available for travel in the Central Florida and South Florida areas.
Mr. Arcadier has represented as an attorney both Plaintiffs and Defendants in a wide range of legal issues and has mediated hundreds of cases since 1997. Mr. Arcadier offers a dynamic approach to mediations with creative, outside-the-box thinking. Mr. Arcadier is also board certified in labor and employment law.
Why Choose Mediation in Florida?
There are many advantages to choosing the mediation process for resolving disputes, versus taking a case to court to settle your dispute. Here are some of the main reasons you may want to choose mediation to resolve your dispute.
One primary advantage to going to mediation is obviously the difference in cost. In Florida mediation is most often a much less expensive process than hiring an attorney or attorneys, and paying other legal fees. Mediators will usually charge the same fee as an attorney, but the process only takes a fraction of the time as taking a case through the legal system. A court case can take months and sometimes even years to make its way through to a judgment or settlement, with the lawyer(s) getting paid by the hour. You can see how this adds up quickly into a very expensive proposition. Mediations can usually be resolved in a matter of a few hours, potentially saving you a considerable amount of money in legal and other fees.
The ADR process is strictly confidential. Court cases are open and held in public and whatever happens in court becomes public record, while everything that occurs in mediation remains confidential. No one but the mediator(s) and the parties involved know what occurred during the mediation. This confidentiality is so highly guarded, that in almost all cases a mediator cannot be forced to testify in court as to what is happening or what has happened in the course of a meditation. In fact, many mediators destroy their notes after a mediation has finished. The only exceptions to the above are in cases of child abuse, criminal acts, or threatened criminal acts.
Mediating a dispute gives both parties equal control. Both parties have a say in the final resolution and disposition of the dispute and it mediation offers flexibility and multiple options for resolution. In a court case, both parties must abide by whatever resolution that the judge or jury imposes, which often leaves both parties wanting. In mediation, both parties have input as to the resolution and can tailor it in unique ways that are often ones that a judge or jury could not provide.
Because a mediated resolution is attained by both sides working equally together, the resolution usually makes both sides feel satisfied and compliance with the agreements is typically very high. This means there are usually no problems enforcing compliance with mediated agreements, although they are fully enforceable in court.
Mediation is the outgrowth of a mutual endeavor. People seek out mediation services because they are ready to work together to resolve their dispute. This is unlike a negotiation, where both parties are still looking to gain a more favorable resolution and are usually unwilling to concede. When two parties agree to mediation it means they are ready to “move” their positions in order to resolve the dispute. The parties are willing to work with each other rather than against, which also has the added benefit of preserving the relationship they had before having to reach mediation.
A mediator is a neutral third party that is trained in conflict resolution and working in difficult situations. As well as working with the issues of the case, he or she will also work as much on the emotional aspects of the case. A mediator will remain neutral and give no legal advice but will help the parties through problem-solving and coming-up with alternative solutions. Good mediators help the parties come up with creative solutions to the dispute and find a resolution that works for everyone.
The Mediator’s Code of Conduct
- Keep participants informed of the process of the mediation.
- Keep a neutral stance towards all parties and reveal any conflicts of interest.
- Conduct the mediation in an impartial manner.
- Keep any information gained during the mediation confidential, within the bounds of the legal framework it was entered into.
- Stay Aware of the mental and physical well-being of all the parties involved.
- Do not offer legal advice but refer the parties to appropriate sources for advice.
- Keep up with continuing education and training to maintain mediation skills.
- Practice only in those areas and fields in which you have expertise through experience or training.
Responsibilities regarding confidentiality in mediation
As mentioned earlier, what makes mediating different from other forms of resolution is that the entire process is kept confidential. Both parties must be informed and understand that all communications and discussions between them during the process are to kept private and confidential. This means it can not be used as evidence if mediation fails and the matter goes to court.
This is accomplished by both parties agreeing to confidentiality as a condition of being involved in the mediation and the mediation document may also be deemed confidential by common law as a result of the mediation.
Very few mediations would ever succeed without the parties first being able to trust the process completely. Confidentiality is the basis for this trust and is what makes mediation work so well, both parties must be able to communicate openly without fearing being compromised in public or in the courts.
The Legal Implications of Mediations
Mediation does not mean you forfeit any legal recourse to your dispute. Each side may pursue legal action in the event mediation fails. However, if mediation succeeds and a settlement is reached it has legal implications. In some cases, such as community mediations, the parties may wish to have a memorandum or moral force agreement in place. In other cases, a deed of agreement is drafted serving as a more legally binding settlement.
Mediation provides a way for two parties that have a conflict to resolve their differences through an alternative forum. For decades now, mediation has helped parties resolve their differences without resorting to costly court battles.
Creating favorable conditions for the parties’ decision-making
Mediators contribute to settling disputes by creating conditions that favorable for both sides when dealing with the dispute. This occurs by:
- Providing the proper environment to convene. This is done by selecting neutral venues, arranging seating and all other considerations.
- Providing a framework to proceed by and conduct the entire mediation process by. The mediator is the chair of the proceedings and will establish all the ground rules, provide order, sequence, continuity and security when necessary.
- Providing a comfortable emotional environment to enable mediation. Some mediators focus on this tool more than others. They improve the emotional environment by controlling any pressure, aggression or intimidation, and providing a shared feeling of neutrality and reducing any anxiety felt between the parties.
Assisting Mediating Parties to Communicate
One of the mediators jobs is to help the parties in conflict to openly communicate and avoid escalation of the dispute. Mediators must be good communicators themselves in order to encourage and help others to communicate. They must have good listening and speaking skills and pay attention to body language and other non-verbal messages sent during the mediation.
Once the main problems defining the parties’ dispute have been identified, mediators are invaluable in directing the negotiation, making a more constructive, efficient and productive experience for all involved. Mediators have great experience and skill in all the various styles and models of negotiation, so can tailor the negotiation to suit the parties’ particular needs. Mediators offer the opportunity to add direction and finesse to negotiation, and are also highly skilled in problem-solving and brainstorming. They can bring new approaches and directions, facilitating the negotiation and enhancing the outcome.
Choice of Mediator
The choice of mediator has great impact on how the mediation process will be conducted, and of course affects all parties involved in the mediation. Different individual mediators have varying personal styles and areas of expertise, and come from different professional backgrounds. It is important to choose a mediator whose background is relevant to the subject of mediation, and whose personal style and model of mediation suit the parties involved, as this will have a huge impact on the mediation experience. If either party feels that there is a conflict of interest in the choice of mediator, it is possible to ask the mediator to withdraw, although there is no formal mechanism in place for objecting to the choice of a particular mediator.
Mediation vs. Arbitration in Florida
Although both mediation and arbitration are contractually-agreed procedures for resolving disputes instead of resorting to a court process, they actually have different purposes and goals, which are often unclear and misunderstood.
Mediation allows parties to sit down with a neutral third party (the mediator), in order to negotiate a settlement to a monetary or other kind of dispute. The parties are not being legally forced to settle, and if no settlement is agreed upon and the dispute progresses to court, the statements made during mediation are not admissible evidence. The use of a mediator makes settling the dispute much more rapid, and can be very efficient and cost-effective. However, always make sure that you are happy with the settlement terms, as the mediator is a neutral third party whose aim is to get a settlement, not to protect either party’s interests. Usually, once both parties begin the mediation process, they genuinely focus on settlement as they feel invested in the mediation process and would rather finally resolve the dispute than leave the mediation still with no settlement being reached. Some disputes can be resolved very quickly through mediation, but even if the mediator has to shuttle multiple times between parties, mediation can often be resolved within hours. If there is no settlement through mediation, you may proceed to arbitration or take the matter to court.
Unlike mediation, arbitration is used when the parties are legally obliged to come to some kind of settlement, and is a substitute for the court process. In contrast to going to court, binding arbitration is usually quicker and cheaper (as attorney costs are lower). Both parties appear in front of a panel of one to three arbitrators, much like a trial. The decision about whether to pursue binding arbitration must be made carefully, as the discussion of the arbitrators is final and it is rare for a successful appeal to be made against a settlement made in arbitration.
Maurice Arcadier, a Florida Supreme Court Certified Circuit Court Mediator and Certified in Foreclosure Mediation is ready to help mediate your dispute. Please call our office today and we will be glad to give you a free consultation on your mediation needs.