Mediation has become nearly universally ordered by state and federal courts in Florida. More recently, as issues surrounding mortgage foreclosure arise in Federal Bankruptcy Court, the Court has turned to experienced mediators to assist in mortgage modifications. The reason that the Courts encourage and often mandate mediation is that they know that mediation resolves nearly 90-95% of all cases, thereby unclogging the severely clogged court dockets. Therefore, if you find yourself in litigation in Florida, you can expect that sometime prior to trial, the Court will require you to mediate your case. Picking the right time to mediate in a case is an art form, not science – and oftentimes it is better to mediate early before the parties have incurred substantial attorneys fees and expenses (and have become entrenched in their own view of the value of their case), while other times the parties simply have to engage in significant discovery to enlighten them as to what facts the other party has to support their claims.
Many parties to litigation view the facts only from their own perspective, with the belief that they can’t lose with these facts. However, the significant danger of not looking at the possibility of losing and critically analyzing the facts from the perspective of the opposing party can result in a loss, a large attorneys fee bill and sometimes the requirement that they reimburse the other party for both the costs they incurred. Sometimes, they may even be saddled with the requirement that they have to reimburse the other party for their attorneys fees as well as paying their own. A mediator with a broad array of experience is in a much better position to help both parties see the upsides and downsides of taking a case to trial, rather than to effectively explore a middle ground that will allow both sides to “win/win”.
Moreover, mediation allows the parties the opportunity to develop their own solutions to the dispute, instead of allowing the trier of fact (judge or jury) to fashion one that you may or may not like. A recent example of this mediator was a jury trial in which the jury rendered a verdict in favor of his client, but granted a damage award that wouldn’t even cover the litigation costs incurred, much less the attorneys fees. Thus, the danger and uncertainty of litigation and allowing a third party to control your destiny suggests that effective and intensive mediation would be a viable and rewarding alternative.