Questions & Answers
If I file a lawsuit in Florida, can I be required to go to mediation?
Yes. Chapter 44, Florida Statutes, gives any trial judge the authority to send any contested civil matter to
mediation with a few case exceptions. In Northeast Florida, the general practice is to direct all cases to
mediation before being allowed to go to trial. In some counties outside Northeast Florida, the judges allow the
parties to decide whether they would like to try mediation before trial.
However, while you may be required to attend the mediation, there is no requirement that you reach settlement
with the other party. Generally, the mediator will expect you to make reasonable effort to discuss the case and
how it might be resolved, but you don’t have to settle it.
What kind of cases go to mediation?
A wide variety of civil cases go to mediation. Civil cases are those where one person or business is suing
another person or organization. Criminal cases, in contrast, are initiated by a complaint filed by a state
attorney or police agency, not another private party. In criminal cases, you can be found “guilty”, and that
would put you at risk for going to jail or paying a fine. In civil cases, you can be found “liable” – which
means you can be required to pay the other party if you lose.
Examples of cases that typically go to mediation:
A furniture store sues a customer who has stopped paying monthly payments.
A church pastor loans church money to a church member, but the member has not paid back any of it,
even though repayment was agreed.
A renter sues a landlord who refuses to give the renter the security deposit back.
A former employee sues a boss who owes him three months back pay.
A homeowner sues the parents of a child who broke the homeowner’s expensive patio tile.
An employer fires a worker, and the worker files an EEO complaint. The EEO agency (either state or
federal EEO, or another agency acting for the state or federal organization) may direct the parties to
mediation before investigating the EEO complaint to see if a resolution can be achieved by the parties.
A husband and wife are divorcing, and the court directs the parties to mediation to see if they can agree
on property settlement, child custody and support, visitation, and other issues.
What kind of cases are best suited for mediation?
Mediation works best when:
The parties want to retain a working relationship after the dispute ends.
Mediation works best when the parties have a relationship that they both want to retain after this dispute is
settled. Many parties have a dispute that must be resolved, but there is an underlying relationship – business,
personal, neighbors, retailer-consumer, etc. – that they want to keep.
There is an outcome that can be beneficial to both parties.
If the dispute is one where a resolution can be set up that is more than a “I win, you lose” outcome, it has a
better chance of succeeding. For example, if the defendant who owes $2,000 for furniture owns a landscaping
company, maybe a settlement can be $1,000 cash paid, plus $1,500 in free landscaping services. See the
examples of “creative solutions” below for more ideas.
There are multiple ways the dispute can be resolved.
If the dispute resolution aims toward outcome, not process, it stands a better chance of being resolved in
mediation. For example, if the dispute is unpaid rent, the landlord only wants to recover the money. It might
be possible for the renter to refer some customers to the landlord, and get $200 credit for each referral that
resulted in a new tenant. (Of course, maybe the landlord won’t want a referral from this tenant!) The key is
that the parties focused on the outcome – money for the landlord – not the way it is achieved (whether the
renter pays it, or earns it by referrals).
The dispute can be focused on the outcome and interests, more than on specific events.
If a homeowner is having trouble with a neighbor and sues him because of continuing loud noise at night, the
interest is in the relationship, not the specific event that caused that specific noise. Parties can agree on future
behavior, and on what will happen if the behavior does not meet the agreed standard.
The cost of litigation is greater than the expected benefit from winning.
In most cases, the cost of litigation is at least a few thousand dollars. Unless the case is worth many thousand,
and your win is almost guaranteed, you’ll be better off mediating it than spending the money up front to take a
chance on winning the case.
The parties don’t want to air all the dirty laundry in court.
Where both parties have behaved in a way that they’d not want to read about in the local paper, it is in their
interest to mediate and not give the local editor something to write about.
Can mediation be used before a lawsuit is filed?
Yes. There are three ways that mediation can occur. The first is that mediation is ordered or recommended by
a judge for a lawsuit that has been filed.
Another way is to seek the services of a mediator after the dispute occurs, but before the lawsuit is filed. By
doing that, the parties avoid the filing fees, and the time that is required for service of process on the
defendant, the allowance for the defendant to have time to file an answer (20 days) and the time required to
get a court date. All the above can add up to three or more months. Some parties to dispute prefer to go to
the mediator first, and that is entirely permissible and under many circumstances, it is a faster and less-
expensive way to address the issue.
The final way to invoke mediation is to provide for it when the parties first enter into an agreement that could
foreseeably result in a dispute. Such an agreement typically stipulates that if there are any disputes that arise
out of the relationship, those disputes will be mediated, and then if not resolved, arbitrated. Some agreements
specify who pays, how mediators and arbitrators are selected, and other aspects of the dispute resolution
Businesses that sell products and services often include mediation and/or arbitration provisions in the sales
contracts with buyers.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an
attorney for individual advice regarding your own situation. Copyright © 2009 2006 by Harvey Slentz. All
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