WHAT IS PRE-SUIT MEDIATION?
Very simply, this means attempting to resolve a conflict by agreeing to voluntary participation in mediation before anyone has filed a legal action in a court of law. Pre-suit mediation can be used to resolve almost any type of conflict, including civil court lawsuits, small claims matters, and family law matters such as child support, divorce, and parenting arrangements.
IS IT A GOOD IDEA TO MEDIATE BEFORE A LAWSUIT IS FILED?
Every situation is different, and you will only be able to answer this question by getting the advice of an attorney. It is ALWAYS a good idea to have a detailed consultation with an attorney prior to attempting to resolve a matter that could end up in court. Only by having the input of legal counsel will you know whether there are risks to you if you do not file an immediate court action. In some cases, assets can disappear, liability risks can expose you to further harm, and statutes of limitations can expire if you do not file a court action. But in many other cases, once you know that there is no harm to attempt a pre-suit settlement, and once you have received advice enough to understand what your possible outcomes in a court setting would be, it may make sense to attempt pre-suit mediation. You would want to have enough knowledge to make sure that an agreement will truly protect you in the event of future court proceedings. But the advantages of resolving a dispute are manifold: avoiding the costs of litigation, the aggravation and interruption of your life to participate in litigation, the risk of an unfavorable court outcome, etc. By mediating prior to filing an action, you may be able to protect the confidentiality of your sensitive issues more easily than in a public court proceeding.
IS A PRE-SUIT MEDIATION BINDING ON ME AND THE OTHER PARTY?
Although deciding to attend a pre-suit mediation is voluntary, and the process of reaching an agreement is voluntary, if you enter a mediation agreement and you execute it, the law does generally recognize the mediated agreement as an enforceable and binding contract. Of course, it is best to obtain legal advice to make sure that your agreement addresses all areas of potential exposure. But in most instances you can confidently resolve all of your issues through a mediation process, and avoid any future court exposure.
SHOULD I BRING A LAWYER TO MEDIATION?
It is your choice whether you wish to bring attorneys, accountants or other advisors to your mediation. If you do bring them, their level of participation is up to you and, in certain instances, up to the mediator. They may or may not participate in joint sessions with the other side, or may simply be available to you as advisors in a separate room. It is a good idea to let the mediator know in advance if you will be bringing such persons with you, to make sure that there is space available to accommodate them.
HOW WILL WE CONCLUDE OUR MATTER IF WE DON’T HAVE A LAWSUIT?
In some cases, the mediated agreement will be presented to a court as a settlement of a lawsuit. In other cases, there will never be a need for any legal proceeding. Unfortunately, the ethics rules that govern mediators in the State of Florida prohibit the mediator from pursuing a conclusion of your legal action. A mediator can provide general information that is publicly available to you to help you conclude a legal matter based on the mediated agreement. For instance, the Florida Supreme Court has made self-help forms available for family law matters that will allow you to pursue a final dissolution of marriage, establishment of paternity, or other legal conclusion of your matter.
SHOULD I WAIT UNTIL A LAWSUIT IS FILED TO GO TO MEDIATION?
In many instances, there may be a good reason to wait until a lawsuit has been filed or discovery has taken place before you attempt to resolve a dispute. For example, where the available information is insufficient for you to make an informed decision, or where other parties would be affected by your agreement and you could be responsible to them, there may be a need for a court action to obtain discovery or define the rights of third parties. However, our court system now routinely refers cases to be mediated prior to allowing a contested trial, so the chances are good that you will have a chance to try to resolve your matter after a case has been filed.
DOES THE MEDIATED AGREEMENT HAVE TO FOLLOW THE LAW OR CAN I AGREE TO ANYTHING?
There are certain matters that can be resolved voluntarily in any way the parties agree. However, there are some matters where a court will conduct oversight and review the mediated agreement to insure that it complies with the law. For instance, in Florida, a judge granting a dissolution of marriage will want to see that the agreement provides appropriate financial support for a child. This is not an area where the parties can simply waive the rights of a child. This is a good reason to seek legal advice before you come to mediation.
IS MEDIATION REALLY CONFIDENTIAL?
Unless the parties agree that Florida’s laws do not apply, a mediation is strictly confidential, and the discussions that are had in a mediation should not be made public by any participant or by the mediator. However, there are some exceptions under the law that will require a public report. Instances of child abuse, elder abuse, or intentions to commit a crime could trigger a legal obligation for a report to authorities to be made. For the most part, however, the negotiations are confidential and will not even be admissible in a court proceeding.
If you have found yourself in a civil or family dispute that may lead to court action, it may be in your best interest to pursue pre-suit mediation. If both parties want to try to work things out before having aggressive lawyers calling the shots on a legal strategy, then you are the right parties to attempt a pre-suit mediation.