Arbitration is a process where a neutral third party or panel considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding on the parties.
Mediation is a process where a neutral third party called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is informal and nonadversarial and has the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision making authority rests with the parties. The role of the mediator includes, but is not limited to assisting the parties to identify issues, to foster joint problem solving, giving information and suggestions, and to explore settlement alternatives.
Only mediators who have been certified by the Supreme Court of Florida may act in court-ordered mediations. In order to become certified in the field in which one will mediate, he/she must be of good moral character and must have a master degree or higher , have four years experience in the qualifying field, have completed a forty hour certification given by a certified primary trainer and have observed two cases (family) or four cases (dependency), and co-mediated 8 - 10 cases. In July 2006, a new system was implemented by the Dispute Resolution Center which allows certification by accumulation of points through education, experience and mentorship.
While a session is up to four hours long, the cases rarely take that long. Normally, the case takes between two and three hours to complete. If the parties reach a settlement, the mediator will prepare the agreement. This may take an additional one-half hour. All parties must remain throughout the entire session, including the preparation and execution of the agreement.
The mediator does not make any decisions pertaining to any issue of the case. This includes not determining who is right or wrong, whether the agreement is fair (unless it is unconscionable), or the outcome of the case. The mediator must honor the parties’ self-determination (the right to make decisions), and must act with impartiality, and without undue influence, conflicts of interest, or coercion. The mediator may give information which he/she is qualified to give by experience or training, may point out possible outcomes of the case, and point out options available to both parties.
There are many benefits of mediation. It is fast (it may be conducted at any stage of the case), and generally inexpensive (especially with court-based programs). It is confidential so nothing said from the time the order of referral is signed until the case ends by agreement, impasse (no agreement), or termination, except where disclosure is required or permitted by law. A session where the mediator meets privately with one party or another is called a caucus. This is even more confidential because the mediator may not disclose anything said in caucus to anyone that wasn’t present at the caucus without the caucusing party’s permission. Perhaps most importantly, the parties make all the decisions for themselves. It is difficult to have a positive relationship with the other party after a contested trial. Frequently, the parties to a mediation, can have a positive post-case relationship because of the informal, low keyed nature of the mediation, and the fact that they have decided how their future will progress.
Not only are the parties to mediation allowed to bring their lawyers, 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 family case mediation, the mediator must provide a copy of the agreement to the absent attorney, and allow ten days for review prior to submitting the agreement to the judge.
The parties, their attorneys and the mediator will be present at all mediations. In a family case, these are generally all the individuals present. In a dependency case, several other individuals may be present. They are the Guardian Ad Litem and their attorney, often custodians attend, sometimes therapists attend, or other individuals who are named in the Order of Referral. Other individuals such as current spouses, or family members who are not on the Order of Referral, may attend if all the parties agree. If any are objected to, they may not attend.
Please bring the following items to mediation: