Please click on the various hyperlinks below under the section labeled “Related Links / Resources” for additional information regarding mediation.
It is not mandatory to retain an attorney for mediation purposes; however, it may be helpful to consult an attorney prior to participating in mediation or to have an attorney accompany you to mediation depending on the complexity of your case.
Non-parties, such as friends and relatives, are only permitted to attend the mediation if all parties agree. If all parties do not agree, non-parties are not permitted to attend the mediation. Therefore, it is best to ask the mediator about bringing someone with you before you go to the mediation.
At mediation, the parties may resolve all of the issues, some of the issues, or none of the issues that are the focus of a particular dispute. If the parties do not reach an agreement, the mediator will prepare a report to the court advising that no agreement was reached; in such situation, the rules governing confidentiality still apply. Thereafter, the parties may still attempt to resolve the case prior to trial, either informally or through additional alternative dispute resolution measures. If the parties are unable to resolve all issues pertinent to a dispute, the case will eventually proceed to trial, where it will either be decided by a judge or a jury.
At mediation, it is not uncommon for the parties to reach a partial agreement as to some of the issues affecting a particular dispute. In such situation, the mediator will prepare a report advising the court of the partial agreement. If the parties are thereafter unable to resolve the remaining issues, the case will proceed to trial and either the judge or jury will decide said issues.
The length of a mediation will depend on the complexity of the case and number of parties to the dispute. Mediation may range from a half hour to a day or several days.
In cases where the mediator is not appointed by the judge, the parties may wish to consider any number of factors when choosing a mediator, including the mediator’s background, training, and experience with mediation or with your type of case.
In Florida, individuals who have completed a Florida Supreme Court certified training program for mediation and satisfied other requirements may designate themselves as “Florida Supreme Court certified.” As of 2023, there are five (5) certification areas: county; circuit; family; dependency; and appellate. Mr. Rochen is certified in (1) circuit, (2) county, (3) family, and (4) appellate court mediation.
A “caucus” is a private meeting that takes place during a mediation between the mediator and one of the parties. Any information shared during a caucus is subject to the rules of confidentiality and may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.
Although there are certain exceptions, the participants to a mediation are not permitted to discuss any information that is discussed during a mediation. Unless one of the exceptions applies, the parties may only discuss what happened or what was said at mediation with their attorneys and other individuals who attended the mediation. If a mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act, sections 44.401 – 44.406, Florida Statutes). The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either: (a) the parties agree it will apply; or (b) the mediation is conducted by a certified mediator. The goal is to allow the mediation participants to openly discuss legal and non-legal issues without fear of others hearing about it. While most things said during mediation will be confidential, there are certain exceptions, including: (a) child abuse, (b) elder/vulnerable adult abuse, or (c) anyone claiming that they are in the commission of a crime or planning to commit a crime.
“Impartiality” refers to the conduct of a mediator, in that the mediator must remain unbiased at all times during a mediation and must not show a preference or favor one party over another.
Mediation and arbitration are similar in terms of process; however, the primary difference is that a mediator does not have authority to make a decision without approval of both parties, whereas an arbitrator has more authority to determine liability and damages issues. Arbitration is typically a more formal process with rules, presentation of evidence and witnesses, and presentation of formal arguments.