Mr. Osherow is a Florida Supreme Court Certified Circuit Civil Mediator since 2006. He is Florida Bar Board Certified in Business Litigation. His mediation style is designed to help parties recognize the strengths and weaknesses of their respective positions and to achieve results that bring parties together to fairly and reasonably conclude their matters without the expenditure, stress and time that uncertainty through litigation and trial brings to the process.
Arbitration is an adjudicative process in which an experienced third-party neutral (or panel of neutrals) serves to resolve disputes through an orderly hearing and award process without judicial intervention. Unlike mediation, where the parties exercise their own self-determination of the outcome, in arbitration, the arbitrator or arbitration panel determines the ultimate outcome of the case, usually by a written determination or decision which may or may not contain the factual and legal basis for the decision. Attorney’s fee awards may or may not be determined by the arbitrator, depending on the agreement between the parties. There is no further review or appeal of the arbitration decision, except under very narrow circumstances that do not apply in the vast majority of arbitration proceedings.
Done properly, arbitration can be a cost-effective, expedient and efficient means of resolving complex commercial disputes. Depending on the circumstances, arbitration can also be quite costly, so the process should be considered carefully before including an arbitration provision in an agreement and deciding to proceed with arbitration rather than another form of dispute resolution. Of course, depending on the circumstances the parties may be bound by an arbitration agreement or may insist on compliance with the agreement’s terms.
Mr. Osherow, who is an experienced trial lawyer, provides arbitration services, on a set fee and hourly basis. He will agree to sit as a member of an arbitration panel of multiple arbitrators in an appropriate case. Mr. Osherow’s experience as a commercial litigator has provide him with a working knowledge of a variety of commercial issues which are often the subject of contractual arbitration processes – employment, professional liability, franchise and construction, to name a few.
Having Mr. Osherow serve as arbitrator may be considered as an alternative to the national ADR providers who have been criticized for exorbitant expenses such as registration fees determined by the amount in controversy, sometimes payable by both claimant and counter-claimant; administrative costs, which are the fees charged by the institution to run and manage the case by reference to a formula. We do not include such charges. We do not charge for use of our facilities, under most circumstances.
We offer streamlined arbitration processes, arbitration via electronic means, and other alternatives to formal arbitrations such as submission of the claims and defenses with appropriate evidentiary support (with or without presentations or conferences), for ruling. Mr. Osherow has given presentations on the arbitration process and arbitration clauses and litigated many cases through his long career involving complex arbitration issues.
An eDiscovery Special Master offers experience in technology, software, IT security, digital forensics and eDiscovery. When a Special Master is brought in early in the discovery process they can often help resolve issues reducing burdens on the Court. The Special Master can also provide technical assist to the court and parties when issues arise late in a case.
Therefore, judges are increasingly appointing eDiscovery Special Masters to help address the technical issues related to ESI and discovery. Because each case presents unique issues, an eDiscovery Special Master can assist the court in effectively resolving technical issues that can often bog a case down
Mr. Osherow has extensive experience in eDiscovery and has worked extensively in the drafting eDiscovery protocols and has provided iinformative presentations on eDiscovery to local bar association members.
Private trials are authorized under Florida Statutes section 44.104. We provide these services in appropriate matters.
Voluntary binding arbitration and voluntary trial resolution.
44.104 Voluntary binding arbitration and voluntary trial resolution.—
(1) Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration, or voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.
(2) If the parties have entered into an agreement which provides in voluntary binding arbitration for a method for appointing of one or more arbitrators, or which provides in voluntary trial resolution a method for appointing a member of The Florida Bar in good standing for more than 5 years to act as trial resolution judge, the court shall proceed with the appointment as prescribed. However, in voluntary binding arbitration at least one of the arbitrators, who shall serve as the chief arbitrator, shall meet the qualifications and training requirements adopted pursuant to s. 44.106. In the absence of an agreement, or if the agreement method fails or for any reason cannot be followed, the court, on application of a party, shall appoint one or more qualified arbitrators, or the trial resolution judge, as the case requires.
(3) The arbitrators or trial resolution judge shall be compensated by the parties according to their agreement.(
4) Within 10 days after the submission of the request for binding arbitration, or voluntary trial resolution, the court shall provide for the appointment of the arbitrator or arbitrators, or trial resolution judge, as the case requires. Once appointed, the arbitrators or trial resolution judge shall notify the parties of the time and place for the hearing.
(5) Application for voluntary binding arbitration or voluntary trial resolution shall be filed and fees paid to the clerk of court as if for complaints initiating civil actions. The clerk of the court shall handle and account for these matters in all respects as if they were civil actions, except that the clerk of court shall keep separate the records of the applications for voluntary binding arbitration and the records of the applications for voluntary trial resolution from all other civil actions.
(6) Filing of the application for binding arbitration or voluntary trial resolution will toll the running of the applicable statutes of limitation.
(7) The chief arbitrator or trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide. At the request of any party, the chief arbitrator or trial resolution judge shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.
(8) A voluntary binding arbitration hearing shall be conducted by all of the arbitrators, but a majority may determine any question and render a final decision. A trial resolution judge shall conduct a voluntary trial resolution hearing. The trial resolution judge may determine any question and render a final decision.
(9) The Florida Evidence Code shall apply to all proceedings under this section.
(10) An appeal of a voluntary binding arbitration decision shall be taken to the circuit court and shall be limited to review on the record and not de novo, of:(a) Any alleged failure of the arbitrators to comply with the applicable rules of procedure or evidence.(b) Any alleged partiality or misconduct by an arbitrator prejudicing the rights of any party.(c) Whether the decision reaches a result contrary to the Constitution of the United States or of the State of Florida.
(11) Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in the circuit court in the circuit in which the voluntary trial took place. Upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not subject to appeal.
(12) The harmless error doctrine shall apply in all appeals. No further review shall be permitted unless a constitutional issue is raised.
(13) If no appeal is taken within the time provided by rules promulgated by the Supreme Court, then the decision shall be referred to the presiding judge in the case, or if one has not been assigned, then to the chief judge of the circuit for assignment to a circuit judge, who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court and for which judgments execution shall issue on request of a party.
(14) This section shall not apply to any dispute involving child custody, visitation, or child support, or to any dispute which involves the rights of a third party not a party to the arbitration or voluntary trial resolution when the third party would be an indispensable party if the dispute were resolved in court or when the third party notifies the chief arbitrator or the trial resolution judge that the third party would be a proper party if the dispute were resolved in court, that the third party intends to intervene in the action in court, and that the third party does not agree to proceed under this section.
History.—s. 4, ch. 87-173; s. 4, ch. 89-31; s. 4, ch. 90-188; s. 3, ch. 99-225.Note.—Former s. 44.304.
Mediation is a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person (called a mediator). A mediator is not allowed to decide who is right or wrong or to tell you how to resolve your dispute. In mediation, you can try to find solutions that make sense to you and the other person in the dispute to resolve some or all of your concerns.
While the goal is to try to work something out, you may decide it would be better for you not to come to an agreement. Sometimes emotions may be driving the dispute which can make talking to the person or party with whom you are in a dispute difficult. A mediator can assist you in easing the way for communication. The mediator is there as a neutral person to help you focus on solving your dispute; however, the mediator is prohibited from providing therapy, counseling or legal advice.
Mediation is used by the courts; additionally there are state and local agencies as well as individuals and corporations which use mediation. When it is used by the court, it is called a “court-ordered mediation.” If you are court ordered to mediation and you are unable to settle your differences, you will go back to court and the judge (or jury) will make a decision for you.
Mediation provides an opportunity to talk with someone who is impartial.
The issues in your dispute are not decided by someone else (self-determination).
What you say in mediation is confidential.
The mediator can help you overcome obstacles to communication with the other person or party in your dispute.
Mediation agreements are enforceable.
A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute.
Mediation is not a trial nor an arbitration.
Mediation can save time and costs.
You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court.
Mediation is an opportunity to gain a greater understanding about why the dispute arose.
Mediation provides an opportunity to talk with someone who is impartial:
The issues in your dispute are not decided by someone else (self-determination):
In mediation, you are the “decision maker.” The mediator helps you discuss your concerns, but cannot make decisions for you.
What you say in mediation is confidential:
Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act, sections 44.401 – 44.406, Florida Statutes). The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either a) the parties agree it will apply or b) it is mediated by a certified mediator. Although not required, sometimes the mediator may ask the parties to state in writing that they will keep everything confidential. The goal is to allow you and anyone at mediation and their lawyer, if any, to talk about legal and non-legal issues without fear of others (including the judge) hearing about it. While most things said during mediation will be confidential, there are some exceptions. (Three main examples of these exceptions are child abuse, elder/vulnerable adult abuse, or anyone saying that they are committing or planning a crime. If you are interested in all the exceptions, see section 44.405(4)(a)(1) – (6), Florida Statutes.A signed mediated settlement agreement is not confidential unless the parties agree it will be confidential and the law allows the agreement to be confidential. Instead, the agreement may – and in some cases MUST – be put in a court file.
The mediator can help you overcome obstacles to communication with the other person or party in your dispute:
Even if you have already tried to talk it out or negotiate with the other or party, a mediator can help you and the other party listen to each other and keep you focused. A mediator is there to help both sides communicate and explore possible solutions. If you and the other party get stuck, the mediator can sometimes help restart the conversation in a new way and help everyone take another step forward.
Mediation agreements are enforceable:
If you reach an agreement in mediation, that agreement must be put into writing and signed by the parties. The written agreement becomes a legally binding document (contract), which is enforceable by the court.
A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute:
Mediation provides you with an opportunity to be creative with your solutions. If both sides agree, you can reach a settlement agreement specific to your individual needs. Mediation is different from litigation (a trial), where the judge or jury makes a final decision. With mediation, both sides can “win,” this is called a “win-win” situation.
Mediation is not a trial nor an arbitration:
Mediation is neither a trial nor an arbitration. In a trial, the parties present evidence and argument so a judge or jury decides the outcome of the dispute. Likewise, in arbitration, the parties present evidence and arguments so an arbitrator or panel of arbitrators decides the outcome of a dispute. In mediation, the mediator assists the parties as they talk about their dispute to help them find and explore mutually acceptable resolutions of their dispute. If you reach an agreement at mediation, you do not have to go to trial or arbitration.
Mediation can save time and costs:
Since mediation is a discussion between the parties, it can be much quicker than the formal trial process. Thus, it may also cost less than going to court - in both dollars and stress.
You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court:
If you resolve the dispute in mediation, you are not gambling on what the judge or jury might decide. In a trial, the final decision will be made by the judge or the jury (if there is a jury). It is uncertain what decision will be made at trial, but you will be bound by that decision whether you agree with or like the outcome of the trial. At mediation, the parties make the decisions.
Mediation is an opportunity to gain a greater understanding about why the dispute arose:
In mediation you are talking with each other, the mediator, and your attorney if you bring one. This interaction promotes a better understanding of the actions that lead to the conflict. Sometimes when the parties understand the “why” of the other person’s actions, it helps create a desire to resolve the dispute.
A mediator helps you talk with the party with whom you are having a dispute. The mediator does not make decisions for you. The mediator is a neutral and impartial guide to help you come up with possible solutions, stay on track, and clarify areas of agreement and disagreement. The mediator may help you and the other party see the conflict from each other side’s point of view.
Many kinds of people can be mediators: mental health or business professionals; attorneys; educators; and others. To become certified by the Florida Supreme Court, a mediator must meet many requirements. There are ethical standards for mediators adopted by the Florida Supreme Court. See the Standards of Professional Conduct in Part II of the Florida Rules for Certified & Court-Appointed Mediators.
A mediator is not there to provide therapy, counseling, business or legal advice. While mediation is a good place to recognize the emotions that may be driving the dispute, the mediator is there as a neutral to help you focus on resolving your dispute.
Court-ordered mediation must begin with an introduction by the mediator explaining the process and the role of the mediator. Among other things, the mediator should explain that the parties make the decisions, not the mediator. The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concerns. If your lawyer is with you at mediation, these opening remarks may be made by you, your lawyer, or both of you.
After these initial procedures, how the mediation is conducted varies. The mediator usually will meet with both parties together to discuss the issues to help you work out your differences. The mediator may also meet with each party privately. This separate meeting is called a caucus. Generally, unless you give the mediator permission to repeat what you say in caucus, the mediator is prohibited from sharing what is discussed.
If you are represented by a lawyer, you and your lawyer will decide how the two of you will interact during the mediation. Some lawyers instruct their clients not to talk during mediation. If this is your decision with your lawyer it is fine; however, it is important for you to know that you are allowed to speak to the mediator at any time.
Eventually, the mediation will end in one of three ways, either: 1) the parties reach an agreement as to some or all issues - all parties (and their lawyers if present) must sign the agreement; 2) the mediator declares an impasse (because you, the other party, or both are unwilling to continue discussing resolution); or 3) the mediator, with the parties’ consent, continues the mediation session by adjourning for the day. If the mediator declares an impasse as to some or all issues, then you and the other party will have to go back to court to have the judge or jury (if there is one) decide your case.
Why is mediation important?
The process of going to court to settle a dispute can be expensive, stressful, and frustrating. This is especially the case with disputes over small amounts of money or involving issues where it is in the parties’ best interests to come to an amicable solution. Rather than taking a dispute to court, many court cases may be eligible for mediation. Unlike a court trial or arbitration, there is no judge or other factfinder that issues a ruling. A mediator instead helps the two parties come to a mutually agreeable solution.
How Does Mediation Work?
When two parties are involved in a civil dispute, the best solution might be the one that they both agree is fair. This is mediation’s goal. In mediation, the two parties come together to discuss terms that they would agree to as a way to settle their dispute. The mediator guides the parties through this process, helps the parties understand each other’s perspectives, and provides advice on the bargaining process.
Unlike court cases and arbitration, where the parties may be bound by law to follow a ruling they don’t agree with, parties in mediation only become bound by what they agree is fair. The mediator cannot impose any terms on a party that the party does not accept.
Before deciding whether mediation is right for your dispute, you should take into consideration other aspects of the mediation process, such as how to find the right mediator and what kinds of solutions mediation can and can’t proffer.
Why Choose Mediation?
Parties might choose mediation over litigation for a variety of reasons. Mediation often offers the parties faster results at a much lower cost than hiring attorneys to bring formal lawsuits would. Additionally, mediation allows the parties to control the solution, rather than relying on a judge to make a ruling that neither party agrees to.
A party might decide not to pursue mediation when a compromise is not in the party’s best interest. When an injured party feels that the other party is completely at fault, the injured party may not want to negotiate through mediation.
What Kinds of Cases Can Be Mediated?
Mediation is usually available for many non-criminal cases. Mediation is often the best choice for cases that either do not involve large sums of money or do not involve substantial legal issues. These disputes can range from disputes between business partners to arguments between neighbors. Because these disputes can usually be resolved through better communication rather than expensive legal wrangling, mediation can offer a less expensive alternative to court. Specific states or courts may require certain types of cases to be mediated before proceeding.
Before you attend a mediation, there are a few things you can do to help prepare yourself and to help make the mediation more beneficial to you.
Get legal advice:
Because a mediator cannot give any legal advice to any parties, if you are not currently represented by an attorney but you have legal questions about your case (including what your case may be worth or what to accept as a “good” settlement), you should contact an attorney before the mediation, so you may make an informed decision about settling your case. If you cannot afford one, Legal Aid or The Florida Bar may have a program to assist you.
Go over all of the information that you have and organize it. It may be helpful to list events in the order in which they occurred. Gather any documents about your issue and put them in a folder to bring with you to the mediation. If you have an attorney, talk to your attorney about your case and mediation. Your attorney may be able to provide you with even more information on what to do during the mediation,
Arrive at the mediation on time. Be prepared to talk to the other party in the dispute. Even if you have had problems talking to the other party on your own, the mediator is there to help with communication. Be aware of the security regulations in the building where your mediation is to take place.
Understand the dispute:
Get the issues straight in your head. If it helps, write the issues down. Think about which issues are the most important to you as well as which issues are least important. In addition, think about what may be most and least important to the other person or party.
Think about what you really need to resolve the case or dispute. Set realistic goals to guide you in your decision making, but be flexible because you may get new information at the mediation that could change your mind.
Get to the mediation on time:
It is important that you arrive at your mediation on time. There are things you should consider in order to be on time - one item is parking. At many buildings, it is difficult to park. Find out in advance about what parking is available and the cost. You may have to pay fees prior to appearing at the mediation or in court. Arrive in enough time to pay your fees.
Arrange for childcare:
If you have children who must be cared for, you should arrange for a babysitter. Often courts and other mediation meeting places do not have anyone to care for children and children are generally not allowed in a mediation.
Where can I get more information?
More information is available on this website. If you choose to get more information about mediation from the internet, please be advised that other states have different rules and only the Florida rules apply to mediation when you are mediating in Florida courts.
Do I have to have an attorney at mediation?
You do not have to have an attorney at mediation. However, it may be helpful to consult an attorney prior to going to mediation or to have an attorney with you.
My friend/relative is a mediator; may he/she mediate my case?
Whether someone may mediate for you depends on the connection that person has to either the case or the people involved in the mediation. Because a mediator must be both neutral and impartial, the mediator should not have any close connection to anyone in the dispute or anyone participating in the mediation. If the mediator does have such a close personal or business connection, (examples: parent, employee, landlord) the mediator may not mediate that dispute. If the connection is not close, then the mediator must disclose the connection. If you recognize any connection or relationship to the mediator, you must disclose the connection as soon as you are aware of the connection. Once the connection is disclosed, if all parties agree, the mediator may serve.
May I bring a friend or relative with me to mediation?
Non-parties (examples are: friends, relatives, advisers.) may attend the mediation ONLY if all parties agree. If all parties do not agree, non-parties may not attend the mediation. Therefore, it is best to ask the mediator about bringing someone with you before you go to the mediation. Anyone who attends a mediation is bound by confidentiality. See “What are some advantages to mediation?”
May I talk to other people about what was said in the mediation?
Generally, the rule is that people who attend a mediation may only discuss what is said in a mediation with others who attend the mediation or their attorney.
What if we reach agreement at mediation?
At mediation you can resolve all of your issues, some of your issues, or none of your issues. If a full or partial agreement is reached, all resolved issues must be written down and all parties in the dispute and their attorneys (if appearing at the mediation) must sign. If, there is only a partial agreement that means there are still issues to be resolved by the court. Those issues will be addressed in a trial unless they are settled after the mediation but before the trial begins.
What if we can’t agree on anything at mediation?
If you do not reach an agreement at your court-ordered mediation, the mediator must report to the court the fact that no agreement was reached. The confidentiality rules still apply. Even if you do not reach an agreement during the mediation, you may continue to try to settle your case after mediation. If you settle your case after mediation but before trial, contact the court to ask what procedures you need to follow.
The other party has selected the mediator – do I have to agree?
The parties should work together to select a mediator. If you cannot agree on the selection of a mediator, the judge will select a Florida Supreme Court certified mediator for you. If you object to the mediator requested by the other party or appointed by the court, there are procedures to deal with your objection. If the parties cannot agree, the court will make the final decision.
Please note: in some cases, you are not able to select your mediator. For example, if you are using a court program, such as in small claims and family court, the mediator may be selected for you by the court or the court program.
How much does it cost to go to mediation?
The cost of mediation depends on many factors. In some cases (example: small claims) the court provides mediators for free. In family cases, the amount charged depends on whether the court program provides the mediator or the parties are selecting their own mediator. If the program provides the mediator, the amount charged depends on the parties’ combined or joint income. [See section 44.108(2), Florida Statutes]. Many circuits provide dependency mediation services at no charge to the parents. Check with the mediation program in your circuit to see if such services are available. Parties who select private mediators should expect to pay market rates. The ethical standards for mediators require that the mediator provide a written explanation of any fees and costs prior to the mediation. The mediator may have minimum fees and charge for travel time, postponements, cancellations, or other expenses. (See rule 10.380, Florida Rules for Certified and Court-Appointed mediators). If the parties do not select a mediator, the court will select a mediator and will set the fees the mediator may charge.
How long does a mediation last?
The length of a mediation will depend on many factors. Mediation may range from a half hour to a day or several days, depending on the complexity of the case or number of parties in the dispute.
How do I select a mediator?
In cases where the mediator is not appointed by the judge, when choosing a mediator, you may wish to consider any number of factors, including the mediator’s background, training, and experience with mediation or with your type of case. You may also wish to consider the fees the mediator proposes to charge. See also Question 9. above.
The Mediator Database of all mediators certified by the Florida Supreme Court can be found on this webpage. Click here to go to the database. This may help you find a mediator in your area; however, it is not the only way to find a mediator. If you have a lawyer, the lawyer may know many mediators; you can also ask friends or trusted colleagues; or you can visit the websites of statewide organizations.
PLEASE NOTE: These definitions are provided to assist the reader in understanding the terms used in this document. They are not “legal” definitions; rather, the terms are explained in plain English to attempt to ensure the greatest level of understanding.
A private meeting at a mediation between the mediator and one side. “Information obtained during caucus may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.” [See rule 10.360(b), Florida Rules for Certified and Court-Appointed Mediators].
In Florida, individuals who have completed a Florida Supreme Court certified training program for mediation and satisfied other requirements may designate themselves as “Florida Supreme Court certified.” As of October 2014, there are five certification areas: county; circuit; family; dependency; and appellate.
Keeping discussions and information private. With only a few exceptions, mediations are confidential. Unless one of the exceptions applies, you may only discuss what happened or was said at mediation with your attorney, another person who attended the mediation, or that person’s attorney.
Not showing any favoritism or prejudice. A mediator must remain impartial at all times and must not show a preference for one party or another.
Other terms you may encounter:
The person being sued. Depending on which court you are in, these terms may differ.
A specially trained person appointed by the court to represent the interests of a minor child or incompetent adult party. The guardian acts on the child’s or adult’s behalf, making sure their needs are considered.
A final order entered by a judge at the end of a lawsuit. Frequently, a judgment will determine the amount of money owed by one person to another, but a judgment may also include other items. A judgment is usually not confidential and may be obtained from the court records. A judgment is enforceable by the court.
The person who is suing. Depending on which court you are in, these terms may differ.
A person who does not have a lawyer and is representing themselves.