What Is A Mediator and What Exactly Do They Do?

Litigation is costly and many people are foregoing it in favor of mediation, and as more and more people choose this route, the demand for mediators is increasing. So, what exactly is mediation, a mediator and what do they do?

In a manner of speaking a mediator is a person equipped with the necessary communication skills and knowledge to help bring about a resolution to a dispute, which in essence is the whole goal of litigation. Mediators help the persons engaged in conflict to step outside their own perspective and view the substantive interests of all the parties. If you Google the term, the general definition of a mediator is "a neutral third person who serves to encourage and facilitate the resolution of a dispute between two or more parties," automatically pops up. The question then is – what is mediation and what does the mediator do to help foster "mediation"? While this may appear as very basic, the purpose of mediation is to open up lines of communication and to explore all possibilities of settlement in order to resolve the dispute. The role of the mediator in and of the process itself includes, but is not limited to, assisting the parties in identifying the issues, fostering joint problem solving, and exploring settlement alternatives. If the parties reach a settlement in mediation, the mediator will draw up a written agreement for the parties and their attorneys (if retained) to sign. The original agreement is then filed with the appropriate Court as part of the case record and the parties are given a copy. The Court is then notified that the case has settled.

The mediator is to remain impartial and neutral throughout the entire process, maintaining impartiality, free from favoritism and bias for or against any party, issue or cause. The mediator's role is not to decide who is right and who is wrong. They are there to help discuss the substantive interests and help facilitate resolution. So, while the mediator may be able to discuss substantive points relative to your claim and/or case, they should not counsel or give legal advice in anyway. A good mediator will advise you to seek counsel and/or direct you to the proper resources should you have any questions relative to your legal rights.

One thing that we like to point out in our opening statements is that mediation is rooted in the Civil Rights Act of 1964; and was designed to be a separate and distinct process set apart from litigation. However, the process has been so successful in resolving conflict in communities as a whole, it has been mandated by various state and federal agencies as part of the litigation process. So, even though you may be “mandated” to mediation by Order of the Court, mediation in and of itself is a voluntary process, rooted in self-empowerment and civil rights of the parties; so, unlike a trial in Court, you cannot be forced to engage in mediation.

Mediation is more like a conversation, and because mediation is more like a conversation and not like a trial, any evidence of conduct, information disclosed, or any statement made in the course of mediation is confidential to the extent agreed by the parties or otherwise provided by law. So, in other words, not to sound too cheesy, but mediation is sort of like Vegas, what happens in mediation stays in mediation, unless it hits a two-point prong:

(1) it is required or permitted reportable by law, I.e., a threat is made to harm life, person, property or the public at large; or

(2) all parties agree to have the information disclosed. For this reason, no one outside of those who are named as parties and/or agents and representatives in the matter being presented may be involved in the mediation process. This means there can be no cell phones, texting or social media posts during the course of mediation. Doing so could breach the cloak of confidentiality and terminate the effectual outcome of the mediation process as a whole, which is to reach an agreement that will resolve everyone’s concerns. And, as an additional cloak of confidentiality, the mediator cannot be called as a witness. This is to ensure that everyone feels comfortable discussing all possible avenues for resolution.

This also means that you cannot bring any additional witnesses or experts to mediation unless everyone involved agrees. So, let's you filed a claim with your insurance company in Florida. The Department of Financial Services schedules a mediation conference has required by statute. You had a public adjuster come out and give a second assessment. You would like them to attend so they can give testimony regarding the additional estimate you requested. They may only attend and give testimony if your insurance company and their agent(s) agree.

Mediation is a less formal process than litigation and is an opportunity for you, the parties, to engage in open and honest negotiations. While mediations do have an intended goal, unlike trial before the Bench, mediation allows you, the parties, to maintain control over the outcome of your case. Because of the relaxed atmosphere, mediation is a more conducive way to successfully reach an agreeable solution that provides satisfaction for all involved.