The Mediation Process - Part II

C. Agreements to Mediate

1. If the parties wish to require mediation with the American Arbitration Association (“AAA”), for all future disputes relating to a contract before any arbitration or litigation can be commenced, the following mediation clause may be added to the contract:

If a dispute between the parties arises out of or relates to this contract, the breach thereof, or any performance or obligation due hereunder, and if the dispute cannot be settled through direct negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Rules before resorting to arbitration, litigation, or some other dispute resolution procedure.

2. If the parties wish to require mediation for all future disputes relating to a contract before any arbitration or litigation can be commenced, but not with any particular association or ADR service, the following mediation clause may be added to the contract:

If a dispute between the parties arises out of or relates to this contract, the breach thereof, or any performance or obligation due hereunder, and if the dispute cannot be settled through direct negotiation, the parties agree first to try in good faith to settle the dispute by mediation pursuant to applicable Florida Rules of Civil Procedure and Florida Statutes governing mediations before resorting to arbitration, litigation, or some other dispute resolution procedure.

3. If the parties wish to mediate an existing dispute, they may enter into the following agreement, independent of any contract:

The parties hereby submit the following dispute to mediation pursuant to applicable Florida Rules of Civil Procedure and Florida Statutes governing mediations: (describe dispute).

or

The parties hereby submit the following dispute to mediation administered by the American Arbitration Association under its Commercial Mediation Rules: (describe dispute).


D. Selection of the Mediator

1. The parties may agree on the appointment of any person to act as the mediator for any mediation conference. As long as the parties agree, the mediator does not need to be certified. Fla. R. Civ. P. 1.720(f)(1)(B). Depending on the level of “reality checking” the parties would like the mediator to undertake, the parties should consider the substantive experience of the mediator and any areas of expertise.

2. In the absence of the parties’ agreement, the court may only appoint a certified mediator to conduct a mediation conference. Fla. R. Civ. P. 1.720(f). The chief judge of each judicial circuit is required to maintain a list of certified mediators who have registered for appointment in that circuit. Fla. Stat. § 44.102(4).


E. Pre- Mediation Summaries

1. Florida Statutes do not specifically provide for the submission of pre-mediation summaries; however, it is a common practice. Unless ordered by the court or requested by the mediator, mediation summaries are not required to be provided or mutually exchanged by the parties. If done, these summaries are confidential, privileged communications. Fla. Stat. §§ 44.102(3) and 90.408.

2. Rule M-9 of the AAA’s Commercial Mediation Rules requires that, at least ten days prior to the first scheduled mediation session, each party is to provide the mediator with a brief memorandum setting forth their position with regard to the issues that need to be resolved.

3. Most standard mediation orders and mediator engagement letters require the parties to provide the mediator with a brief summary. Mediation summaries are very helpful for the mediator to determine how best to approach the mediation.

4. Mediation summaries should include the following:

a. a brief introduction of the parties and their respective lawyers;
b. a brief summary of the relevant facts;
c. a summary of the status of the case, i.e., whether depositions have been taken, whether the case is set for trial, whether the action is a bench trial or is a jury trial, etc.;
d. a breakdown of any monetary and non-monetary relief sought in the action, including whether attorney’s fees are recoverable;
e. the history of prior settlement negotiations, including all offers and counter offers.