Why should you consider pre-suit mediation
Mediating voluntarily before a lawsuit is called pre-suit mediation. It can be required by a contract or done by agreement. It can completely resolve the dispute at a low cost. If it does not settle, pre-suit mediation can still shape and narrow the issues for litigation and help to contain the future litigation expenses. The benefits of pre-suit mediation and whether it makes sense in a given scenario should be an early discussion between you and your business lawyer.
What is mediation
Mediation is generally required in all civil cases in Florida unless excused by the Court. Mediation is a less structured and more intimate process than litigation. There are no rules of evidence or procedure in mediation like there are in a lawsuit. There is no limit to the number of times that parties in a business lawsuit can mediate during their dispute. Mediation can be of great benefit and it normally does not negatively impact the process at all.
How does mediation work
Before the mediation the parties select the mediator. The mediator is often an experienced attorney or retired judge. Mediators undergo special training and can be certified by the Florida Supreme Court, but are not required to be certified. In a lawsuit if the parties cannot agree then sometimes the judge may choose for them. The mediator then works with the parties to schedule the mediation and sends an engagement letter to the lawyers for the parties. The parties are generally equally responsible for the fees of the mediator under the engagement letter. The engagement letter also invites each side to send a confidential mediation summary to the mediator in advance of the actual mediation.
The mediation itself normally starts with the parties in the same room or virtual room. The mediator will explain how the process will work. The mediator will also state that everything said and presented in the mediation is confidential under Florida law. Each attorney or unrepresented party then makes opening remarks to frame their perception of the dispute for the mediator and the opposing side. The parties then move to separate rooms or virtual breakout rooms where the mediator meets privately with each side several times. The function of the mediator is not to decide the case. The goal of the mediator is to help the parties see their dispute differently and to consider a compromise on certain points with the end result being a full or partial settlement.
The mediation itself normally starts with the parties in the same room or virtual room. The mediator will explain how the process will work. The mediator will also state that everything said and presented in the mediation is confidential under Florida law. Each attorney or unrepresented party then makes opening remarks to frame their perception of the dispute for the mediator and the opposing side. The parties then move to separate rooms or virtual breakout rooms where the mediator meets privately with each side several times. The function of the mediator is not to decide the case. The goal of the mediator is to help the parties see their dispute differently and to consider a compromise on certain points with the end result being a full or partial settlement.
How is pre-suit mediation different from regular mediation
Presuit mediation is no different than ordinary mediation except it occurs before any lawsuit is filed. It can be done by agreement between the parties in a dispute. It may also be required by a written contract. Certain form agreements like Florida's residential purchase and sale contract commonly called a FarBar contract have a mandatory pre-suit mediation term in them. The pre-suit mediation provision there is intended to cause the parties to discuss the situation before rushing to court to allow cooler heads to prevail. This is particularly helpful where one or both parties are moving as a result of the real estate purchase and the dispute will have a ripple effect on that move.
Business contracts may also have a pre=suit mediation mandate to force the parties to address their issues. By that point communications between the parties would have broken down thus injecting a neutral mediator with or without attorneys to represent the parties would reestablish the lines of communication between the parties. If one party to a contract containing a mandatory pre-suit mediation provision disregards that provision and files suit, the other can easily move to compel mediation, which is often granted by the courts in deference to the agreement. At that point the mediation is technically no longer pre-suit, but it does respect and enforce the pre-suit mediation agreement.
Mediating before a lawsuit can reduce or eliminate future litigation costs. It can also provide an opportunity for the parties to objectively review their developing dispute with the assistance of a neutral mediator. With pre-suit mediation the parties retain their right to litigate their dispute if they do not settle. Thus pre-suit mediation clauses in a contract give the parties an informal and less costly opportunity to resolve any disputes. The only real cost is that of the mediation itself. But the fee for the mediator is far less than the expense of a lawsuit.
Business contracts may also have a pre=suit mediation mandate to force the parties to address their issues. By that point communications between the parties would have broken down thus injecting a neutral mediator with or without attorneys to represent the parties would reestablish the lines of communication between the parties. If one party to a contract containing a mandatory pre-suit mediation provision disregards that provision and files suit, the other can easily move to compel mediation, which is often granted by the courts in deference to the agreement. At that point the mediation is technically no longer pre-suit, but it does respect and enforce the pre-suit mediation agreement.
Mediating before a lawsuit can reduce or eliminate future litigation costs. It can also provide an opportunity for the parties to objectively review their developing dispute with the assistance of a neutral mediator. With pre-suit mediation the parties retain their right to litigate their dispute if they do not settle. Thus pre-suit mediation clauses in a contract give the parties an informal and less costly opportunity to resolve any disputes. The only real cost is that of the mediation itself. But the fee for the mediator is far less than the expense of a lawsuit.
Conclusion on pre-suit mediation in Florida
Whether to include a presuit mediation provision in a contract or agree to one proposed to you is something to discuss with your business lawyer. One of the services the Law Office of David Steinfeld provides is business and real estate mediation through Palm Beach Business Mediation.
Presuit mediation is beneficial in that it can resolve a dispute before it becomes a lawsuit. It is also useful in setting the groundwork for a future resolution should on not be reached at the presuit mediation. Lastly, even where no settlement is reached, presuit mediation can help shape and narrow the issues to be litigated which saves time and money later.
Presuit mediation is beneficial in that it can resolve a dispute before it becomes a lawsuit. It is also useful in setting the groundwork for a future resolution should on not be reached at the presuit mediation. Lastly, even where no settlement is reached, presuit mediation can help shape and narrow the issues to be litigated which saves time and money later.
Written by Board Certified business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
