BLG Newsletter: Mediation

by Sarah Albani, Esq.

Mediation is becoming more and more popular in Florida, especially in foreclosure cases.  Judges are using it as a tool to unclog the backlog of cases, as well as funnel new filings through an alternative route.  While mediation can often help parties reach a resolution without further litigation, it is important to understand the mediation process beforehand.

Mediation can either be court-ordered or non-court ordered.  Either way, it is important to have a neutral third party to help facilitate settlement.  Under the Mediation Confidentiality and Privilege Act, sections 44.401 – 44.406, Florida Statutes, there are laws and rules pertaining to confidentiality in court-ordered mediation.  These laws and rules also apply in non-court ordered mediation if the parties agree or if there is a certified mediator involved.

Settlement is the goal when parties enter mediation.  However, it is certainly not required.  Mediation allows the parties to openly communicate about the issues of a case.  This is because everything said in mediation is confidential, and cannot be used either for or against you later in court.  There are a few exceptions to this rule, but they are only applicable in situations of physical abuse or criminal activities.  The parties discuss the issues face to face, which allows them to air their grievances in a way that is not always possible in a formal court setting.  Depending on the progression of the mediation, the parties may stay in the same room, or may split off into different rooms for what’s known as a caucus.  This simply allows the parties privacy to discuss the issues.

Each party attending a mediation must have full authority to settle the case.  This does not mean that every member of an Association Board needs to be present at mediation, but whomever does attend needs to discuss all issues with the rest of the Board beforehand.  That way, at mediation, the member in attendance is able to reach a settlement and bind the Association.

Having an unbiased third party mediator is important to the mediation process because it allows the parties to understand the other person’s perspective.  It also provides the parties with someone who is impartial to bounce ideas off of if they get stuck in the settlement discussions.  In a courtroom, a Judge makes a final ruling that both parties are forced to accept, while in mediation a mediator helps parties come up with a result on their own.

The parties can either accept or refuse this result.  All of the power is in the hands of the parties.  If they accept it, they will put the agreement into writing and it becomes enforceable by the court.  If no settlement is reached, the case proceeds as it normally would.

Mediation can be a useful tool in Association disputes because it can help save time, as well as litigation costs.  While not always successful, it allows the parties flexibility in reaching a resolution.  Associations may fear that owners use mediation to slow down the foreclosure process, but as long as they are informed and the process is managed, they can use mediation to their advantage.