If you are involved in civil litigation that appears to be at a standstill, mediation may be a viable option. Mediation often results in a better outcome in considerably less time than a trial – and at a substantially reduced cost. Additionally, at trial, the outcome is decided by a judge or jury; the parties have no control. In mediation, the parties are in control of the outcome. At Kirkland, McGhee, & Gann, we are fortunate to have Brian Kirkland, a Florida Certified Circuit Mediator and Florida Board Certified Civil Trial Lawyer, among our dedicated attorneys. While mediation is a substantial portion of Brian’s practice, he maintains a busy litigation practice, staying abreast of current legal issues that may apply to your case. If you have never been through the mediation process, you owe it to yourself to learn more about the process and how it might work for you.
What Is Mediation?
Civil litigation, of any kind, can be time-consuming and costly for everyone involved. Ideally, the parties in a civil lawsuit are able to negotiate a mutually agreeable settlement without the need for a lengthy trial. Historically, if a settlement did not appear to be forthcoming, proceeding to trial was considered the only option. Legal systems across the country, however, were routinely backlogged with cases waiting for trial dates, putting a strain on court resources and forcing many litigants to wait years for their day in court. The concept of “Alternative Dispute Resolution (ADR)” evolved as a response to overworked judicial systems. As the name implies, ADR methods offer an alternative to a traditional trial when the parties to a civil lawsuit have reached an impasse during negotiations. Mediation is one of several different types of ADR.
The parties to a civil lawsuit may voluntarily agree to mediation or may be ordered to mediation by the court. The mediation process involves a neutral third party – a certified mediator – listening to both sides of the dispute and attempting to facilitate a mutually acceptable resolution. The mediator does not offer legal advice nor determine issues of liability or damages. Instead, the mediator meets with the parties, collectively and separately, to determine where each party’s priorities lie and where there might be room to compromise. The mediator works with the parties to find areas of agreement and overcome obstacles in an effort to reach a compromise.
You cannot be forced to reach an agreement during mediation; however, if an agreement is reached it is legally binding. Moreover, anything you say during a mediation is confidential and settlement negotiations that take place during mediation are not admissible in court should the case eventually go to trial. Ultimately, you have very little to lose and much to gain by agreeing to participate in a mediation.
The Civil Mediation Process
The Florida court system has been actively utilizing mediation for over 30 years. Once mediation has been agreed upon or ordered by the court, a mediator is appointed by the court or chosen by the parties. As of 2016, there were almost 6,000 certified mediators in Florida. Mediators may be certified in the following areas:
The parties may prepare a summary of the case and the contested issues for the mediator well ahead of the mediation date. Remember, a mediator does not offer advice nor decide who has the stronger legal position. The summaries, however, help the mediator prepare for the mediation by educating the mediator on the points of contention and agreement.
Typically, the mediation will take place at the mediator’s office or another neutral location outside of the courtroom. Usually, there is a joint session where the parties are given the opportunity to give a presentation of their positions, after which the mediator will begin going back and forth between the parties in separate private sessions in an attempt to find areas of agreement and compromise that might lead to a final resolution of all issues in the lawsuit.
If an agreement is reached, it is reduced to writing, signed by the parties, and is enforceable in court. If the mediation does not result in an agreement, the case resumes where it left off within the legal system.
Benefits of Mediation
For the parties to a civil lawsuit, the most notable benefits of mediation are typically control over the outcome, a more expeditious resolution of the litigation, and a reduction in costs associated with the litigation. Depending on the jurisdiction, it can take months, even years, to get a trial date for a civil jury trial because of the court backlog. Setting up a mediation, on the other hand, can usually be accomplished within a few weeks. The cost of presenting a case to a jury can also be enormous. Along with the attorney fees, which are typically higher for trial, there are also the associated expenses for things such as trial preparation, expert witness testimony, and jury consultants. The cost of mediation pales in comparison to the cost of a trial.
Can My Case Be Mediated?
Virtually all civil cases can be mediated. Therefore, as long as the litigation you are involved in is civil in nature, your case is probably eligible for mediation.
Why Should You Contact Kirkland, McGhee & Gann?
Mediation offers the potential for an expeditious and economical resolution to civil litigation. If you are currently the party to a civil lawsuit and you wish to explore the possibility of mediating your case, talk to your attorney about scheduling mediation. Brian Kirkland’s online calendar can be viewed at floridamediators.org to aid in scheduling a mediation. If you represent yourself, feel free to contact Brian Kirkland to discuss mediation options. We understand that the concept of mediation is often new to litigants which is why we are committed to taking the time necessary to explain the mediation process and potential benefits to you in a way that makes you comfortable with deciding if mediation is right for you. To explore the possibility of mediation for your, contact Brian Kirkland at Kirkland, McGhee & Gann by calling 850-332-6120 or click below to schedule an appointment.