Frequently Asked Questions
Answers to common questions we hear about mediation and the process.
Core Process Questions
What is the difference between mediation and arbitration?
Mediation is a facilitated negotiation. The mediator is neutral and helps the parties evaluate risk, exchange information, consider options, and work toward a voluntary resolution. The parties retain control of the outcome, and no settlement is binding unless the parties reach and sign an agreement.
Arbitration is different. In arbitration, the parties present their dispute to a neutral arbitrator, who acts more like a private decision-maker. Depending on the parties’ agreement or the governing law, the arbitrator’s decision may be final, binding, and enforceable.
Is mediation confidential?
Yes, in most circumstances. Mediation is designed to allow candid discussion, risk assessment, and settlement negotiations without those communications being used later in court. Florida law generally protects mediation communications from disclosure, subject to limited statutory exceptions. The mediator also generally cannot be compelled to testify about mediation communications.
What is the mediator's role?
The mediator’s role is to serve as a neutral facilitator. The mediator helps the parties identify issues, clarify positions, evaluate risks, explore settlement options, and communicate productively. The mediator does not decide the case, does not represent either side, and does not provide legal advice to any party.
Does the mediator decide who is right?
No. A mediator may help the parties test the strengths and weaknesses of their positions, but the mediator does not decide the dispute. Any resolution is reached by the parties themselves.
Is a mediated settlement legally binding?
A mediated settlement becomes binding when the parties enter into a written settlement agreement that satisfies the applicable legal requirements. Once signed, the agreement may be enforceable in the same manner as other settlement agreements and, in some cases, may be incorporated into a court order or final judgment.
What happens if we do not reach an agreement?
If the parties do not reach an agreement, they generally retain their rights to continue with litigation, arbitration, administrative proceedings, or another available dispute-resolution process. In some cases, the parties may agree to continue negotiations, exchange additional information, or schedule a follow-up mediation session.
Preparation and Participation
Do I need an attorney for mediation?
An attorney is not always required, but parties are encouraged to consult counsel when legal rights, litigation risk, public-sector issues, land-use approvals, contracts, or significant financial interests are involved. The mediator remains neutral and cannot give legal advice to either side.
Who should attend mediation?
Each party should have someone present with full settlement authority. For businesses, local governments, associations, insurers, or other entities, this usually means a representative who can make meaningful decisions or obtain necessary authority during the mediation. Counsel may also attend.
How should I prepare for mediation?
Preparation usually includes providing the mediator with a concise summary of the dispute, the key documents, the procedural history, the status of any pending case or claim, and any prior settlement discussions that may assist the mediator. Parties should also consider their best outcome, acceptable resolution range, non-monetary terms, litigation risk, timing concerns, and the cost of continued dispute.
What documents should be provided in advance?
The documents will depend on the dispute. Common examples include pleadings, contracts, correspondence, expert reports, appraisals, plans, staff reports, ordinances, resolutions, administrative materials, photographs, invoices, insurance materials, and prior settlement proposals. The goal is to give the mediator enough context to be useful without overwhelming the process with unnecessary material.
Will there be a joint session?
Often, but not always. Some mediations begin with a brief joint session so the parties can introduce themselves, confirm the process, and frame the issues. Other mediations move directly into separate private meetings, particularly where the parties and counsel believe that format will be more productive.
What happens during private caucuses?
A private caucus is a confidential meeting between the mediator and one side. Caucuses allow each party to discuss risk, settlement strategy, priorities, and concerns more candidly. The mediator will not disclose information learned in a private caucus unless authorized to do so.
Scheduling, Format, and Cost
How long does mediation take?
The length depends on the complexity of the dispute, the number of parties, the amount of information involved, and how far apart the parties are when mediation begins. Many disputes can be addressed in a half-day or full-day session. More complex matters may require a full day, multiple sessions, or follow-up work after the initial session.
Should we schedule a half-day or full-day mediation?
The mediator can help recommend the most appropriate format after learning more about the dispute. A half-day session may be appropriate for focused disputes with limited issues. A full-day session is often better for multi-party matters, public-sector disputes, land-use or development matters, complex commercial issues, or cases involving significant damages or multiple decision-makers.
How much does mediation cost?
Mediation is typically billed hourly and divided equally among the parties unless the parties, a contract, or a court order provides otherwise. Preparation time, session time, follow-up work, and any required travel time may be billable. The applicable hourly rate and any scheduling or cancellation terms will be provided before the mediation is confirmed.
Where can mediation take place?
Mediation may be conducted at the Maitland office, at another mutually agreed location, or online by Zoom or another agreed platform. The best format depends on the nature of the dispute, the location of the participants, the need for document review, and the parties’ preferences.
Can mediation be conducted online?
Yes. Online mediation can be effective, efficient, and convenient, particularly when participants are in different locations. Video mediation can also allow separate private breakout rooms for confidential caucuses.
What is the cancellation policy?
Cancellation terms should be confirmed at the time of scheduling. Because mediation requires reserved time, preparation, and coordination among multiple participants, cancellation fees may apply if a session is canceled or rescheduled too close to the mediation date.
Arbitration Questions
When is arbitration appropriate?
Arbitration may be appropriate when the parties have agreed to arbitrate, when a contract requires arbitration, or when the parties want a private decision-maker with subject-matter experience. Arbitration can be useful where the parties need a final decision but prefer a process that may be more flexible than traditional litigation.
Is arbitration always binding?
Not always. Arbitration may be binding or non-binding depending on the parties’ agreement, the applicable rules, and the governing law. The scope of the arbitrator’s authority, the procedures to be used, and the finality of the decision should be addressed before the arbitration begins.
How is arbitration different from a trial?
Arbitration is usually more flexible and private than a court trial. The parties may agree on procedures, hearing format, deadlines, discovery limits, and the issues to be decided. Unlike mediation, however, arbitration results in a decision by the arbitrator rather than a voluntary settlement by the parties.
Practice-Focused Questions
What types of disputes are appropriate for mediation?
Mediation can be useful in a wide range of civil disputes, including land-use and development matters, local-government disputes, commercial and contract disputes, real-estate disputes, community association matters, construction-related issues, and disputes involving public-sector decision-making or intergovernmental relationships.
Can mediation help before a lawsuit is filed?
Yes. Pre-suit mediation can help parties evaluate risk, preserve relationships, control cost, and avoid the delay and uncertainty of litigation. It can be particularly valuable where the parties expect to have an ongoing business, governmental, or community relationship after the dispute is resolved.
Can public entities participate in mediation?
Yes. Public entities can participate in mediation, but additional issues may need to be considered, including public authority, settlement approval, Sunshine Law constraints, public records, insurance, indemnity, budgeting, and the formal action required to approve any final settlement.
Does mediation work if the parties are far apart?
Yes. Many mediations begin with the parties far apart. The process is designed to help each side better understand the risks, costs, practical constraints, and possible settlement structures that may not be apparent at the beginning of the session.
Website Disclaimer
These FAQs are for general informational purposes only. They do not constitute legal advice, do not create an attorney-client or mediator-party relationship, and should not be relied upon as a substitute for advice from counsel regarding any particular dispute.
