The Mediation Process - Part I

A. The Mediation Process

1. Mediation is a process whereby a neutral third person encourages and facilitates the resolution of a dispute between two or more parties in an informal proceeding to help the parties reach a voluntary binding agreement. Fla. Stat. § 44.1011(2); Fla. R. Med. 10.210.

2. The mediator does not make any rulings or decisions for the parties. Fla. R. Med. 10.310. The mediator may not give the parties any legal advice, but the mediator may discuss the possible outcomes of the lawsuit or arbitration if not settled, as well as the potential strengths and weaknesses of the parties’ positions in the case. Fla. R. Med. 10.370. The process is conducted in an informal non-adversarial manner. The objective of the mediation is to reach a mutually acceptable agreement. Fla. R. Med. 10.410.

B. Mediation Order

1. A circuit or county court is required to order the parties to a civil lawsuit to mediation if one party requests mediation and the lawsuit is for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless:

a. The action is a landlord and tenant dispute that does not include a claim for personal injury.

b. The action is filed for the purpose of collecting a debt.

c. The action is a claim of medical malpractice.

d. The action is governed by the Florida Small Claims Rules.

e. The court determines that the action is proper for referral to non-binding arbitration.

f. The parties have agreed to binding arbitration.

g. The parties have agreed to an expedited trial.

h. The parties have agreed to voluntary trial resolution.
Fla. Stat. § 44.102(2)(a).

2. A circuit or county court may order the parties to mediation for any civil lawsuit for which mediation is not otherwise required. Fla. Stat. § 44.102(2)(b).

3. Under no circumstances may the following actions be referred to mediation:

a. Bond estreatures.
b. Habeas corpus and extraordinary writs.
c. Bond validations.
d. Civil or criminal contempt.
e. Other matters specified by administrative order of the chief judge in the circuit.
Fla. R. Civ. P. 1.710(b).

4. When a civil action is referred to mediation by court order, the time period for responding to any settlement offer under Florida Statute § 45.061 or an offer or demand pursuant to § 768.79 is tolled until an impasse has been declared by the mediator or the mediator has reported to the court that no agreement was reached. Fla. Stat. § 44.102(5)(a).

5. Unless ordered by the court or stipulated by the parties, the mediation process shall not suspend discovery. Fla. R. Civ. P. 1.710 (c).