by Tom | Jan 15, 2013 | News
Not only are the parties to mediation allowed to bring their attorney, they are encouraged to do so. Remember, the mediator may not give advice or opinion, so the parties must look to their attorney for such advice or opinion. Attorneys are also present to lend moral support, and counsel to their clients. Although a mediator may, in his/her discretion and with the agreement of the parties, proceed without the attorney being present, they are reluctant to do so. If there is an attorney of record, who is not present at a Circuit civil mediation, the mediator must provide a copy of the agreement to the absent attorney.
by Tom | Nov 16, 2012 | News
Confidentiality of Mediations – Mediated agreements in small claims and County Civil courts are filed with the clerk’s office. Once filed agreements are public record if someone should inquire. It is possible in all courts to make an agreement confidential. This may be important in some professions. Keep in mind the fact that someone was sued is still public record.
by Tom | Nov 15, 2012 | News
97.5% of the civil lawsuits filed in Florida never go to trial. Many cases are resolved in mediation, arbitration or dismissed for various reasons. One would conclude of the remaining cases the plaintiff wins 1.25%, and 1.25% are won by the defendant.
by Tom | Nov 8, 2012 | News
Mediation is the fastest growing ADR method. Unlike litigation, mediation provides a forum in which parties can resolve their own disputes, with the help of a neutral third party.
Mediation depends upon the commitment of the disputants to solve their own problems. The mediator/ neutral, also known as a facilitator, never imposes a decision upon the parties. Rather, the mediator’s/neutral’ job is to keep the parties talking and to help move them through the more difficult points of contention. To do this, the mediator/neutral typically takes the parties through five stages.
First, the mediator gets the parties to agree on procedural matters, such as by stating that they are participating in the mediation voluntarily, setting the time and place for future sessions, and executing a formal confidentiality agreement. One valuable aspect of this stage is that the parties, who often have been unable to agree on anything, begin a pattern of saying yes.
Second, the parties exchange initial positions, not by way of lecturing the mediator but in a face-to-face exchange with each other. Often, this is the first time each party hears the other’s complete and uninterrupted version. The parties may begin to see that the story has two sides and that it may not be so unreasonable to compromise their initial positions.
Third, if the parties have agreed to what is called a caucusing procedure, the mediator meets with each side separately in a series of confidential, private meetings and begins exploring settlement alternatives, perhaps by engaging the parties in some “reality testing” of their initial proposals. This process, sometimes called shuttle diplomacy, often uncovers areas of flexibility that the parties could not see or would have been uncomfortable putting forward officially.
Fourth, when the gap between the parties begins to close, the mediator may carry offers and counteroffers back and forth between them, or the parties may elect to return to a joint session to exchange their offers.
Finally, when the parties agree upon the broad terms of a settlement, they formally reaffirm their understanding of that settlement, complete the final details, and sign a settlement agreement.
Mediation permits the parties to design and retain control of the process at all times and, ideally, eventually strike their own bargain. Evidence suggests that parties are more willing to comply with their own agreements, achieved through mediation, than with adjudicated decisions, imposed upon them by an outside party such as a judge.
An additional advantage is that when the parties reach agreement in mediation, the dispute is over—they face no appeals, delays, continuing expenses, or unknown risks. The parties can begin to move forward again. Unlike litigation, which focuses on the past, mediation looks to the future. Thus, a mediated agreement is particularly valuable to parties who have an ongoing relationship, such as a commercial or employment relationship.
by Tom | Nov 6, 2012 | News
Arbitration more closely resembles traditional litigation in that a neutral third party hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. The difference is that in arbitration, the disputants generally agreed to the procedure before the dispute arose; the disputants mutually decide who will hear their case; and the proceedings are typically less formal than in a court of law. One extremely important difference is that, unlike court decisions, arbitration offers almost no effective appeal process. Thus, when an arbitration decision is issued, the case is ended.
Final and binding arbitration has long been used in labor-management disputes. For decades, unions and employers have found it mutually advantageous to have a knowledgeable arbitrator—whom they have chosen—resolve their disputes in this cheaper and faster fashion. One primary advantage for both sides has been that taking disputes to arbitration has kept everyone working by providing an alternative to strikes and lockouts and has kept everyone out of the courts. Given this very successful track record, the commercial world has become enthusiastic about arbitration for other types of disputes as well
by Tom | Nov 4, 2012 | News
The court to which a case is assigned has to do with the amount the plaintiff is suing for. Cases less than $5,000.00 are assigned to small claims court. Cases $5,000.00 to $15,000.00 are assigned to County Civil, and those over $15,000 and up go to Circuit Civil Court. Florida Courts Jurisdictional Chart
