Mediation is an alternative to litigation. The process is designed to assist two opposing parties to calmly hear one another’s side of the story, to minimize hostility which can stem from a lawsuit, to maximize the possibility of agreement, and to find a way to a mutually beneficial compromise. In some cases , the judge will move for court ordered mediation.
Court ordered mediation generally takes place when the judge feels there is an opportunity for a solution to be reached which involves the two parties, rather than simply making a ruling. Mediation is often ordered in family law cases as the parties are so intimately involved.
How Court Ordered Mediation Works
Mediation can take place with the parties and their lawyers alone, however most often occurs with the assistance of a court ordered mediator. This neutral third party is tasked with maintaining order and allowing each party to present their case. The mediator is not there to make a determination of guilt or innocence,, or even to make a final decision regarding an agreement. The official role of the mediator is to moderate the conversation and keep everyone on track. They can either meet with all parties together, or can separate the parties and relay messages back and forth.
The mediator helps each party to articulate their position clearly and to communicate to the other side. He or she will add their thoughts and attempt to keep a level, fair playing field. Mediations are, by law, private and confidential, and the details will not be shared with the court. (With the exception of admissions/evidence of spousal or child abuse, criminal behavior or intent to commit a crime.)
The goal of the mediator is not to present a solution, provide counseling or give advice. They are there to facilitate the parties ultimate agreement. Because they are not making a decision, the parties will have the final word as to the terms of the agreement, giving them a stake in the outcome. If you are represented by an attorney, you and your attorney will decide how communication will take place. You may choose to speak directly with the other party, or to communicate through lawyers and the mediator. Although the latter is sometimes necessary due to a hostile situation, the most successful mediations tend to be those where the parties talk to one another (with lawyer presence and advice). This is because often, once you hear the other side of the story, you can better understand the opposite party’s mindset and motivations. This knowledge can sometimes help to diffuse the situation and allow a compromise.
A successfully negotiated mediation agreement is signed by all parties and legally enforced by the court of law. If no agreement is reached, there is other recourse.
When Mediation Fails
If your court ordered mediation fails, you still retain the right to move to a trial and to litigate a decision. Sometimes, parties in an emotional mediation may think litigation is preferable, but this is typically not the case.
If mediation fails and the matter goes back to court, it is more expensive. The failed mediation process must still be paid for, as will the litigation process go forward. Also, because in litigation the judge has a final say, the parties lose their opportunity to participate in the overall solution to the problem at hand. In mediation, each can work towards compromise where everyone sees some victory. In the case of litigation, a party may be ruled against completely and that decision is final.
If you are facing a court ordered mediation and have not retained an attorney, it may be in your best interest to obtain legal counsel. Call the Sarasota attorneys at Probinsky & Cole. We are here to help.
