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Mediation
In order to obtain certification from the
Florida Supreme Court as a mediator, I completed
an extensive training program. Drawing on my
considerable experience, education and
background, I regularly serve as a mediator in
employment matters.
What is mediation and how does it work?
Mediation is a supervised settlement
conference presided over by a qualified,
experienced, and neutral mediator who
suggests alternatives, analyzes issues,
questions perceptions, uses logic, conducts
private caucuses, stimulates negotiations
between opposing sides, and keeps order. It
is also a docket and litigation management
tool which has proved successful in securing
a high percentage of settlements on an
amicable basis without the expense,
exposure, and uncertainty of trial. The
mediation conference is conducted in a
conference room; however, private rooms or
offices are made available for individual
caucuses and conferences.
The mediation process itself is intended to
be informal in nature, while the actual ebb
and flow of the process is structured by the
mediator. Unlike arbitration which results
in an award and possible judgment, the only
result of the mediation conference is the
agreement of the parties. Although the
mediation process is inherently flexible, as
a rule, the following guidelines apply to
the conduct of the mediator:
The mediator will:
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Be impartial.
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Suggest alternatives.
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Have private meetings or caucuses with
the attorneys, parties, corporate
representatives, and claims
professionals.
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Assist in clearly identifying the
issues.
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Privately debate each side’s logical
basis and perceptions.
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Respect confidential and/or privileged
information.
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Allow the parties to negotiate.
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Guide the parties and counsel in
finalizing a specific settlement
agreement.
The mediator will not:
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Act as a judge or arbitrator.
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Rule upon questions of fact or law.
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Render a decision or award.
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Hear testimony.
Trial
counsel and the parties, to include corporate
representatives and necessary claims professionals, are
required to appear and participate in the mediation process,
and must attend the conference with complete authority to
compromise and settle the action. Participants are required
to remain and participate in the mediation conference until
a settlement is reached or an impasse is declared. The
parties, with the consent of the mediator, may agree to
continue the mediation conference to a date certain prior to
the regularly scheduled trial date, or the mediator may
declare an impasse. As a rule, the mediation process usually
lasts somewhere between 4 to 6 hours.
Mediators
charge anywhere from $180 per hour to $350 per hour which is
usually split between the parties. If the case settles, the
mediator’s fee will be taken out of the settlement proceeds.
If the case is not settled, the participants are billed for
the mediator’s fees.
Advantages of Mediation:
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Enables the parties to negotiate a settlement which may
be more favorable than their expected result at trial.
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Facilitates negotiation -- forces the creation of an
event at which both sides must negotiate in good faith.
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Accomplishes the goal of the client without a
disproportionate expenditure of attorney’s fees.
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Durable agreement - no appeal - no collection problem.
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Allows parties the ability to structure the settlement
in a way that could not be done if the case went to
trial. This will be the last time that the participants
will have complete control over your case.
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Prevents the unlimited exposure and uncertainty of a
trial.
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Allows parties to exert some informed direct influence
over the outcome of the dispute after observing the
other attorney, the other party, and hearing a capsule
discussion of the case with a neutral outsider.
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Avoids the expense and anxieties of trial preparation
and trial.
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Allows the party to bargain through counsel for certain
key elements which are extremely important in exchange
for other elements which are less important. In other
words, you can obtain concessions in mediation that
would be impossible if you went to trial.
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Each
side gets to see the other’s best offer and the parties
can decide to take it or litigate.
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