Mediation is a process where a neutral person (the mediator) helps disputing parties explore their differences and see if they can settle the matter peacefully through compromise. While the mediator guides the dialogue and process, the parties make the ultimate decisions. By contrast, at trial the jury or judge decides the final result. Thus, while mediation is not the last chance the parties have to control the outcome, it is often the last best chance for them to do so, given the other factors that are unique to the mediation process.
Initially, mediation was only used in litigation, when ordered by a judge. Not any more. Parties can agree to mediate their disagreements at any time, and many are seeing the wisdom in getting a mediator’s assistance early in the dispute, before it escalates into a formal lawsuit. In Florida, the rules and laws regarding mediation apply whenever the mediation occurs – during, before or after litigation.
There are several aspects of mediation that “make it work” in resolving disputes – attendance, informality, confidentiality, and self-determination. First, the process of mediation requires every decision maker to be present, reducing the time it takes to communicate and the potential for miscommunication. Second, mediation is informal, not bound by rules of evidence or procedure that attach to lawsuits and trials. Third, mediation is a confidential process that allows parties to make admissions for purposes of exploring settlement that cannot be told to the judge, jury or others if the dispute does not resolve. Finally, and most importantly, the disputing parties determine the outcome of a mediation. The mediator provides a forum and process, lawyers advocate for their clients and give advice, but the parties decide whether or not to resolve their dispute.
While disputes can resolve before or after mediation, it is wise for a party to think of mediation as the “last best chance to resolve the matter”, given the confidentiality and informality that are unique to mediating a dispute.