the Potential of Mediation
The Florida Dispute Resolution Center (DRC) is a joint program of the Florida Supreme Court and Florida State University College of Law. It was created in 1986 with two primary goals: 1) to support the development of alternative dispute resolution within the state court system in Florida and 2) to promote education and research in the field of alternative dispute resolution more broadly. While the use of mediation and arbitration in Florida pre-dated the creation of the DRC, there has been extensive institutionalization of ADR within the court system since 1986. Of particular importance was the adoption in 1987 of "comprehensive" legislation which in essence created statutory authorization for trial (and later also appellate) judges in Florida to order to mediation or arbitration nearly all civil cases subject to the judge's discretion and Supreme Court of Florida rules.1 The legislation, which went into effect January 1, 1988, also required the Supreme Court of Florida, to establish qualification requirements for mediators and arbitrators, court procedural rules, standards of conduct, and a disciplinary mechanism. 2
As a result of this legislation, the DRC has focused primarily on implementing court-ordered mediation in the State of Florida. In 1988, the first Supreme Court certified mediation training programs were offered. Today, there are ten training providers offering Supreme Court certified mediation training. Currently, there are over 5000 Supreme Court certified mediators in four different areas of certification: county (civil cases under $15,000 including small claims cases which are civil cases under $5000), family (dissolution of marriage cases and modifications including issues relating to child support, alimony, property division, and shared parenting, as well as child support and shared parenting issues even if the parents were never married), circuit (civil cases $15,000 and over) and dependency cases (abuse and neglect/child protection cases)3. These certified mediators mediated over 120,000 cases for the state court system in calendar year 2001.
I have had the pleasure of working for the DRC since 1988 and as the Director of the DRC since 1991. In this capacity, I have trained hundreds of individuals to serve as mediators and arbitrators, oversaw the development of several iterations of mediation training program standards, worked with committees developing and refining Florida Rules for Certified and Court-Appointed Mediators which contain standards of conduct for mediators and a disciplinary procedure, and provided staff assistance to the Mediator Ethics Advisory Committee which have rendered over 70 advisory ethical opinions.
Although the DRC is involved with many different types of "alternative" dispute resolution, the focus of this article will be on mediation as utilized by the state court system. Mediation is defined in the Florida Statutes as:
a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. Section 44.1011, Florida Statutes.
It is important to differentiate this process from evaluative processes, such as arbitration whereby a neutral third person would listen to the facts and arguments presented by the disputing parties and render a decision. The decision of an arbitrator (or arbitration panel) may be binding or nonbinding depending on how the parties arrived at the arbitration.4 In mediation, the goal is for the parties involved in a dispute to be afforded the opportunity to discuss their issues and concerns with each other and to develop a mutually agreeable resolution IF they so desire. Embedded in this statement, is a clear focus on self-determination and empowerment.
The Florida court procedural rules support these notions in a variety of ways. For example, there is no requirement for "good faith participation" in a mediation ordered by the court, nor is there any requirement that the parties resolve their dispute in mediation. Instead, when the parties are "ordered" to mediation, the state court rules require the parties to "appear" at the mediation session and there are specific rules as to how one fulfills that requirement.5 The theory behind these rules is that if the court identifies all the people who are necessary to resolve a dispute and orders them all to be in the same place at the same time, they will make good use of that time. By the same token, if mediation is not a "comfortable" way for one or more of the parties to handle their dispute, they can return to the court for a resolution. In fact, pursuant to another procedural rule, if the parties do not reach an agreement in mediation, the mediator may only report to the court that no agreement was reached "without comment or recommendation."6
In addition, nearly all of the procedural governing court-ordered mediation contain the caveat "unless otherwise agreed by the parties." This provides the parties with procedural guidelines in the event that they can not agree or are unsure how to proceed, but also preserves the parties' self-determination by allowing them to design a mediation process that takes into account their individual circumstances. For example, once ordered to mediation, the parties have ten days to agree upon a mediator.7 If they can agree, they can choose a mediator certified by the Florida Supreme Court (who meets the educational/experiential, training and mentorship requirements 8) or a mediator who is not certified but in the opinion of the parties is "otherwise qualified by training or experience to mediate all or some of the issues in the particular case." Again, the aim was to balance the self-determination right of the parties against the responsibility of the court to identify "appropriate" mediators in the event the parties do not know who to select or can not agree.
When a mediation works well, the parties have the opportunity to learn from each other about the source of their conflict. In some cases, they achieve a new level of understanding and appreciation of each other. This can be particularly valuable and useful in situations where the parties will have some type of "continuing" relationship. Examples of such relationships may be that of a landlord and a tenant, neighbors, co-workers, individuals involved in on-going business deals, or divorcing parents (they may have decided to no longer be husband and wife but if they have children in common, they will continue to be in a co-parenting relationship).
Parties to mediationeven court-ordered mediationare not required to resolve the situation how a judge would have decided the case. They are free to craft an agreement which makes sense to them and one which they are capable of honoring. As a result, compliance with mediated agreements tends to be very high. This is particularly significant in the context of small claims cases. Because of the simplified procedures, it is fairly easy to prevail in small claims court by obtaining a judgment if you are "right." What is not as easy, is to collect on that judgment. Unfortunately, banks do not allow someone to deposit a "judgment" nor does the paper judgment necessarily translate into cash in the prevailing party's pocket. In mediated agreements though, there is a high rate of compliance because the parties are able to discuss not only total amounts owed but how the amount might be paidperhaps via a payment plan or perhaps by a creative solution involving some other type of non-monetary exchange. In addition, it fits with the human principle that one is more likely to do something that s/he says s/he will do than if someone "orders" the individual to do so. While the mediated agreement in a court-ordered mediation carries the full force of a judgment rendered by a court, it also carries the weight of an individual committing him/herself to do something. For many people this added dimension of "giving my word," ensures greater compliance. Another benefit of a mediated agreement is that parties are able to acknowledge each other. Sometimes this takes the form of an apology. Because of the inherent liability problems of offering an apology during litigation, it is a rare occurrence. On the other hand, I have often heard expressed by parties in dispute that acknowledgment by the "wrongdoer" of the impact of their actions is the most important aspect for the aggrieved party. Given the confidentiality of mediation sessions,9 there is little risk and much to gain for this acknowledgment to occur.
There have been many lessons learned over the years. One of the most significant aspects of Florida's court-connected mediation program was an early understanding and commitment on behalf of the Florida Supreme Court to continually monitor and revise the mediation program as we learned. When Florida adopted the comprehensive statute, there were no other examples at which to look10. In addition, there was concern among the mediation community that court-ordering what is essentially a "voluntary" process would spell the end of mediation. Undeterred by the criticism, the Florida Legislature and the Florida Supreme Court put the program in place, and over the next 14 years have revised the statute governing court-ordered mediation six times, revised and improved the training standards three times, revised the procedural rules four times, and adopted a standard of conduct for mediators and grievance procedure and revised it three times. In addition, the Supreme Court has two standing committees to continue this review and modification processone on ADR rules11 and one on ADR policy.12
One of the great challenges which remain for the state court system is how to enable the growth and development of mediation programs within the context of a legal system.13 In particular, a recurring concern of mine is to ensure that the court system is improved by the insertion of mediation while also ensuring that mediation is not co-opted by the legal system. Over the years there have been many layers of requirements, procedures and rules placed upon court-certified mediators and mediation sessions conducted pursuant to court order. While each step has been necessary and appropriate (in my opinion), I often contemplate the cumulative effect of these requirements. In essence, the question is what will be the ultimate impact of placing a process which is based on flexibility, party self-determination and empowerment into a system which is based on rules, precedent and due process. On the other hand, it is clear to me that the creation of court-ordered mediation has resulted in much greater public awareness and understanding of this processand even more importantly, greater use. The challenge for all of us who desire peaceful and appropriate resolution to disputes, is to ensure that mediation remains true to its core values as the creative uses of it expand.
For information eMail: firstname.lastname@example.org
1 Section 44.102(2), Florida Statutes.
2 Section 44.106, Florida Statutes.
3 In dependency cases it is important to note that the mediations do not involve negotiation over the abuse and/or neglect. Instead, these mediations generally include the parent or parents, a guardian ad litem, a case worker from the Department of Children and Families (DCF), and attorneys for each of these parties, where applicable. In addition, sometimes additional relatives or foster parents may participate. In rare circumstances, an older dependent child may participate for some portion of the mediation. The goal in these mediations is to assist the parent(s) and DCF in developing a case plan of services which will be provided to the family and obligations the parent(s) agree to take on in order to facilitate reunification or if not completed, termination of parental rights.
4 Generally, the decision in a court-ordered arbitration will be nonbinding on the parties whereas the decision in a voluntary arbitration or arbitration conducted pursuant to a contract clause will be binding.
5 In circuit mediations and county mediations over $5000, the named parties, their attorneys (if represented), and a representative from the insurance company with full authority to settle up to policy limits or plaintiffs last demand (if insurance is involved) all must appear at the mediation unless otherwise agreed by the parties. See rule 1.720(b), Florida Rules of Civil Procedure. In small claims mediation, appearance means attendance by the named parties, their representatives having signed authority to resolve the dispute, or their attorney possessing full authority to settle the case without further consultation. See rule 1.750(e), Florida Rules of Civil Procedure. In dependency mediation, all “parties” and “participants” ordered to mediation must be physically present at the mediation. Those representing an agency, department, or program must have full authority to enter into a “binding agreement” on behalf the agency, department or program. See rule 8.290(l), Florida Rules of Juvenile Procedure. For family mediation, the named party must be physically present. See rule 12.740(d), Family Law Rules of Procedure. Finally, there is an advisory ethics opinion which states that the individuals specified in the rules above fulfill their obligation by physically appearing and allowing the mediator to deliver an “opening statement” explaining the process of mediation. If, after listening to this opening, the parties do not feel that mediation is an appropriate option for them, they are free to leave without any penalty. See MQAP 95-009.
6 Rule 1.730(a), Florida Rules of Civil Procedure.
7 Rule 1.720(b), Florida Rules of Civil Procedure; Rule 8.290(e), Florida Rules of Juvenile Procedure; Rule 12.741(b)(6), Florida Family Law Rules of Procedure. Note, this rule does not apply to small claims cases when the parties are referred to mediation at pre-trial.
8 See Rule 10.100, Florida Rules for Certified and Court-Appointed Mediators.
9 For court-ordered mediation in Florida, the statutory reference is 44.102(3), Florida Statutes. In addition, the National Conference of Commissioners on Uniform Laws (NCCUSL) adopted in August 2001, a Uniform Mediation Act which is primarily focused on the confidentiality of mediation sessions. See
10 Texas adopted a similar statute the same year as Florida but had not yet adopted procedural rules, qualifications and other components when Florida was developing its original rules in 1987.
11 Initially conceived of as a mediation and arbitration rules committee, it was renamed and given an expanded charge in 2001.
12 Initially conceived of as a mediation and arbitration training committee, it was renamed and given an expanded charge in 2001.
13 For a more comprehensive discussion of this issues see "Institutionalization: Savior or Saboteur of Mediation?" Florida State Law Review, Volume 24, Number 4, 1997.
Click the link below to support the work of our volunteer Internet publication: