What to Expect – Pre-Suit Mediation Edition

Both Chapter 718 and Chapter 720, Florida Statutes, encourage, recommend and in some situations even require pre-suit mediation. But what is mediation? Legally speaking, mediation is a type of Alternative Dispute Resolution (a/k/a ADR). Practically speaking, mediation is a supervised and confidential settlement negotiation. Pre-suit mediation is a process by which parties attempt to resolve disputes without the need for litigation. But what does that mean and what should the Board expect?

The party sending the pre-suit mediation offer is responsible for providing a list of mediators. The party receiving the pre-suit mediation offer selects one of the proposed mediators provided on the list by the opposing party. Then, the parties obtain available mediation dates and coordinate a mediation date that works for both sides. Attendance, whether in-person or via video conference, should also be determined in advance of the mediation.

Before an association’s board of directors begins mediating a dispute, it should meet with the association’s counsel to discuss strategy and expectations. During this meeting the board and counsel should discuss in frank and open terms what are perceived as the strengths and weaknesses of the association’s position(s). They should also formulate a game plan and discuss contingencies as well as settlement parameters. Realistic expectations are important.

If less than a quorum of the association’s board will be participating in the mediation, a mediation resolution that identifies those members of the board who will be in attendance and that states that those attendees have full settlement authority should be adopted prior to the mediation.

Mediation is conducted before a trained, neutral, and impartial third-party mediator. However, the mediator is not a judge and the only decisions that are made, if any, are made by the parties. Typically, the mediator will introduce himself or herself and then run through the mediation “rules”. The mediator will explain his or her role and what he/she expects from each side. The mediator will also discuss the importance of maintaining confidentiality and the role that confidentiality plays in the mediation process.

After the mediator finishes the introduction, then each party is permitted an opportunity to make opening statements. This is traditionally handled by counsel when parties are represented at mediation. It is important to note that opening statements are typically made in the presence of all the other parties. The opening statements provide an opportunity for each side to speak directly to the other side. This may be the last time that all parties are “face-to-face” during the mediation. Following the opening statements, each party along with its counsel are typically shown to their own breakout room where they will often remain outside of the presence of the other parties and of the other parties’ attorneys for the remainder of the mediation.

The mediator will then (physically or electronically) go back and forth between the different rooms and discuss the intricacies of the dispute. The mediator may disclose anything to the other side that the parties agree is to be disclosed. If there is an item that a party wishes to remain confidential, the party needs to clearly indicate same to the mediator. Mediation is not a trial and there is no introduction of “evidence.” Instead, each side is afforded an opportunity to present its viewpoints and arguments as well as what it perceives are the weaknesses of the other side’s arguments. While there is no introduction of “evidence,” documents, reports, photos, etc. can play an important role when addressing strengths and weaknesses in the parties’ positions. The mediator should facilitate these conversations, test theories, and present potential alternatives to each side.

If the parties are not able to reach an agreement, an impasse will be declared, and the mediation is thereby completed. In the alternative, if time becomes an issue and both parties agree, the mediation may be continued to another date. If the parties are able to reach a mediated settlement agreement, same should be reduced to writing and signed by all parties before leaving mediation. The most productive mediations tend to be those that result in settlement agreements that leave both parties a little unhappy with the outcome. Most mediations do not conclude with one party or the other getting everything they were seeking. Instead, a mediated settlement agreement is a compromise meant to reach a final result that avoids the time, costs, and risks associated with litigation.