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.
REDUCED DELAYS MEANS LESS COSTS AND TIME
Congestion throughout our judicial system is quite an incentive to select a private trial in an appropriate matter. Delays in obtaining court time for lengthy hearings and trials. is almost always a consideration. This situation confronts every trial attorney and their clients with the risk of losing witnesses, incurring additional investigative costs, and consoling clients unhappy with the delay in achieving just resolution of their claims as quickly as possible. While the courts and judges for the most part do their best to work extremely diligently to move matters forward, delays remain a factor to consider.
Florida Statutes Section 44.104 enables litigators and clients the opportunity to utilize the skills of both practicing attorneys and retired Judges. Except for the few limitations set forth in F.S. 44.104(14), the private trial procedure is virtually unlimited in scope. The designated private judge has almost all the powers of a judge and the final judgment is fully enforceable.
In a private hearing or trial the private trial adjudicator (judge) is more generally available to the parties, making the private trial facilitative of dealing with issues expeditiously. The parties are thus able to focus on reaching a final resolution. Swift resolution may reduce the cost of the litigation (even with the fees of the private trial judge) , resulting in savings which may outweigh the expense of retaining a private judge. Utilization of our private judge/adjudicator services can help the parties streamline the proceeding, narrow the issues more effectively, bring the issues to the forefront in a cost effective manner, and assist the parties to resolve the matter quickly, by addressing issues,, including those that may be determinative of the entire matter, as they arise or can be heard. Private judging can also help the parities achieve greater privacy, reduces the chance of losing witnesses, and incurring unnecessary fees for expert witnesses. All services and proceedings can be conducted virtually via Zoom or Microsoft Teams.
2019 CHAPTER 44 MEDIATION ALTERNATIVES TO JUDICIAL ACTION
44.1011 Definitions.44.102 Court-ordered mediation.44.103 Court-ordered, nonbinding arbitration. 44.104 Voluntary binding arbitration and voluntary trial resolution. 44.106 Standards and procedures for mediators and arbitrators; fees. 44.107 Immunity for arbitrators, mediators, and mediator trainees.44.108 Funding of mediation and arbitration. 44.201 Citizen Dispute Settlement Centers; establishment; operation; confidentiality. 44.401 Mediation Confidentiality and Privilege Act.44.402 Scope. 44.403 Mediation Confidentiality and Privilege Act; definitions.44.404 Mediation; duration. 44.405 Confidentiality; privilege; exceptions. 44.406 Confidentiality; civil remedies.
44.1011 Definitions.—As used in this chapter:(1) “Arbitration” means a process whereby a neutral third person or panel, called an arbitrator or arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding as provided in this chapter.(2) “Mediation” means 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, decisionmaking 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. “Mediation” includes:(a) “Appellate court mediation,” which means mediation that occurs during the pendency of an appeal of a civil case.(b) “Circuit court mediation,” which means mediation of civil cases, other than family matters, in circuit court. If a party is represented by counsel, the counsel of record must appear unless stipulated to by the parties or otherwise ordered by the court.(c) “County court mediation,” which means mediation of civil cases within the jurisdiction of county courts, including small claims. Negotiations in county court mediation are primarily conducted by the parties. Counsel for each party may participate. However, presence of counsel is not required.(d) “Family mediation” which means mediation of family matters, including married and unmarried persons, before and after judgments involving dissolution of marriage; property division; shared or sole parental responsibility; or child support, custody, and visitation involving emotional or financial considerations not usually present in other circuit civil cases. Negotiations in family mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required, and, in the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.(e) “Dependency or in need of services mediation,” which means mediation of dependency, child in need of services, or family in need of services matters. Negotiations in dependency or in need of services mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required and, in the discretion of the mediator and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.
History.—s. 1, ch. 87-173; s. 1, ch. 90-188; s. 43, ch. 94-164; s. 54, ch. 95-280.Note.—Former s. 44.301.
44.102 Court-ordered mediation.—(1) Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.(2) A court, under rules adopted by the Supreme Court:(a) Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless:1. The action is a landlord and tenant dispute that does not include a claim for personal injury.2. The action is filed for the purpose of collecting a debt.3. The action is a claim of medical malpractice.4. The action is governed by the Florida Small Claims Rules.5. The court determines that the action is proper for referral to nonbinding arbitration under this chapter.6. The parties have agreed to binding arbitration.7. The parties have agreed to an expedited trial pursuant to s. 45.075.8. The parties have agreed to voluntary trial resolution pursuant to s. 44.104.(b) May refer to mediation all or any part of a filed civil action for which mediation is not required under this section.(c) In circuits in which a family mediation program has been established and upon a court finding of a dispute, shall refer to mediation all or part of custody, visitation, or other parental responsibility issues as defined in s. 61.13. Upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process.(d) In circuits in which a dependency or in need of services mediation program has been established, may refer to mediation all or any portion of a matter relating to dependency or to a child in need of services or a family in need of services.(3) All written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119.(4) The chief judge of each judicial circuit shall maintain a list of mediators who have been certified by the Supreme Court and who have registered for appointment in that circuit.(a) Whenever possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. If a mediation program is funded pursuant to s. 44.108, volunteer mediators shall be entitled to reimbursement pursuant to s. 112.061 for all actual expenses necessitated by service as a mediator.(b) Nonvolunteer mediators shall be compensated according to rules adopted by the Supreme Court. If a mediation program is funded pursuant to s. 44.108, a mediator may be compensated by the county or by the parties.(5)(a) When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or to an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled until:1. An impasse has been declared by the mediator; or2. The mediator has reported to the court that no agreement was reached.(b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial.History.—s. 2, ch. 87-173; s. 2, ch. 89-31; s. 2, ch. 90-188; s. 2, ch. 93-161; s. 10, ch. 94-134; s. 10, ch. 94-135; s. 44, ch. 94-164; s. 18, ch. 96-406; s. 2, ch. 97-155; s. 2, ch. 99-225; s. 2, ch. 2002-65; s. 1, ch. 2004-291; s. 31, ch. 2005-236.Note.—Former s. 44.302.
44.103 Court-ordered, nonbinding arbitration.—(1) Court-ordered, nonbinding arbitration shall be conducted according to the rules of practice and procedure adopted by the Supreme Court.(2) A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.(3) Arbitrators shall be selected and compensated in accordance with rules adopted by the Supreme Court. Arbitrators shall be compensated by the parties, or, upon a finding by the court that a party is indigent, an arbitrator may be partially or fully compensated from state funds according to the party’s present ability to pay. At no time may an arbitrator charge more than $1,500 per diem, unless the parties agree otherwise. Prior to approving the use of state funds to reimburse an arbitrator, the court must ensure that the party reimburses the portion of the total cost that the party is immediately able to pay and that the party has agreed to a payment plan established by the clerk of the court that will fully reimburse the state for the balance of all state costs for both the arbitrator and any costs of administering the payment plan and any collection efforts that may be necessary in the future. Whenever possible, qualified individuals who have volunteered their time to serve as arbitrators shall be appointed. If an arbitration program is funded pursuant to s. 44.108, volunteer arbitrators shall be entitled to be reimbursed pursuant to s. 112.061 for all actual expenses necessitated by service as an arbitrator.(4) An arbitrator or, in the case of a panel, the chief arbitrator, shall have such power to administer oaths or affirmations and to conduct the proceedings as the rules of court shall provide. The hearing shall be conducted informally. Presentation of testimony and evidence shall be kept to a minimum, and matters shall be presented to the arbitrators primarily through the statements and arguments of counsel. Any party to the arbitration may petition the court in the underlying action, for good cause shown, to authorize the arbitrator to issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence at the arbitration and may petition the court for orders compelling such attendance and production at the arbitration. Subpoenas shall be served and shall be enforceable in the manner provided by law.(5) The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case 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.(6) Upon motion made by either party within 30 days after entry of judgment, the court may assess costs against the party requesting a trial de novo, including arbitration costs, court costs, reasonable attorney’s fees, and other reasonable costs such as investigation expenses and expenses for expert or other testimony which were incurred after the arbitration hearing and continuing through the trial of the case in accordance with the guidelines for taxation of costs as adopted by the Supreme Court. Such costs may be assessed if:(a) The plaintiff, having filed for a trial de novo, obtains a judgment at trial which is at least 25 percent less than the arbitration award. In such instance, the costs and attorney’s fees pursuant to this section shall be set off against the award. When the costs and attorney’s fees pursuant to this section total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and attorney’s fees, less the amount of the award to the plaintiff. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus all taxable costs pursuant to the guidelines for taxation of costs as adopted by the Supreme Court, plus any postarbitration collateral source payments received or due as of the date of the judgment, and plus any postarbitration settlement amounts by which the verdict was reduced; or(b) The defendant, having filed for a trial de novo, has a judgment entered against the defendant which is at least 25 percent more than the arbitration award. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus any postarbitration settlement amounts by which the verdict was reduced.
History.—s. 3, ch. 87-173; s. 3, ch. 89-31; s. 3, ch. 90-188; s. 3, ch. 93-161; s. 43, ch. 2004-265; s. 32, ch. 2005-236; s. 1, ch. 2007-206.Note.—Former s. 44.303.
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.
44.106 Standards and procedures for mediators and arbitrators; fees.—(1) The Supreme Court shall establish minimum standards and procedures for qualifications, certification, professional conduct, discipline, and training for mediators and arbitrators who are appointed pursuant to this chapter. The Supreme Court is authorized to set fees to be charged to applicants for certification and renewal of certification. The revenues generated from these fees shall be used to offset the costs of administration of the certification process. The Supreme Court may appoint or employ such personnel as are necessary to assist the court in exercising its powers and performing its duties under this chapter.
(2) An applicant for certification as a mediator shall undergo a security background investigation, which includes, but is not limited to, submitting a full set of fingerprints to the Department of Law Enforcement or to a vendor, entity, or agency authorized by s. 943.053. The vendor, entity, or agency shall forward the fingerprints to the department for state processing, and the department shall forward the fingerprints to the Federal Bureau of Investigation for national processing. Any vendor fee and state and federal processing fees shall be borne by the applicant. For records provided to a person or entity other than those excepted therein, the cost for state fingerprint processing is the fee authorized in s. 943.053(3)(e).
History.—s. 6, ch. 87-173; s. 6, ch. 90-188; s. 2, ch. 2019-98.Note.—Former s. 44.306.
44.107 Immunity for arbitrators, mediators, and mediator trainees.—(1) Arbitrators serving under s. 44.103 or s. 44.104, mediators serving under s. 44.102, and trainees fulfilling the mentorship requirements for certification by the Supreme Court as a mediator shall have judicial immunity in the same manner and to the same extent as a judge.
(2) A person serving as a mediator in any noncourt-ordered mediation shall have immunity from liability arising from the performance of that person’s duties while acting within the scope of the mediation function if such mediation is:(a) Required by statute or agency rule or order;(b) Conducted under ss. 44.401-44.406 by express agreement of the mediation parties; or(c) Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by ss. 44.401-44.406.
The mediator does not have immunity if he or she acts in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
(3) A person serving under s. 44.106 to assist the Supreme Court in performing its disciplinary function shall have absolute immunity from liability arising from the performance of that person’s duties while acting within the scope of that person’s appointed function.
History.—s. 5, ch. 89-31; s. 7, ch. 90-188; s. 1, ch. 95-421; s. 2, ch. 2004-291.Note.—Former s. 44.307.
44.108 Funding of mediation and arbitration.—(1) Mediation and arbitration should be accessible to all parties regardless of financial status. A filing fee of $1 is levied on all proceedings in the circuit or county courts to fund mediation and arbitration services which are the responsibility of the Supreme Court pursuant to the provisions of s. 44.106. The clerk of the court shall forward the moneys collected to the Department of Revenue for deposit in the State Courts Revenue Trust Fund.1
(2) When court-ordered mediation services are provided by a circuit court’s mediation program, the following fees, unless otherwise established in the General Appropriations Act, shall be collected by the clerk of court: (a) One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year;(b) Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000; or (c) Sixty dollars per person per scheduled session in county court cases involving an amount in controversy not exceeding $15,000.
No mediation fees shall be assessed under this subsection in residential eviction cases, against a party found to be indigent, or for any small claims action. Fees collected by the clerk of court pursuant to this section shall be remitted to the Department of Revenue for deposit into the State Courts Revenue Trust Fund to fund court-ordered mediation. The clerk of court may deduct $1 per fee assessment for processing this fee. The clerk of the court shall submit to the chief judge of the circuit and to the Office of the State Courts Administrator, no later than 30 days after the end of each quarter of the fiscal year, a report specifying the amount of funds collected and remitted to the State Courts Revenue Trust Fund under this section and any other section during the previous quarter of the fiscal year. In addition to identifying the total aggregate collections and remissions from all statutory sources, the report must identify collections and remissions by each statutory source.
History.—s. 6, ch. 89-31; s. 8, ch. 90-188; s. 6, ch. 91-152; s. 8, ch. 2001-122; s. 12, ch. 2001-380; s. 66, ch. 2003-402; s. 44, ch. 2004-265; s. 33, ch. 2005-236; s. 24, ch. 2008-111; s. 12, ch. 2010-153; s. 4, ch. 2011-133; s. 11, ch. 2019-58.1Note.—Section 31, ch. 2019-58, provides that “[t]he amendments to the jurisdiction of a court made by this act shall apply with respect to the date of filing the cause of action, regardless of when the cause of action accrued.”Note.—Former s. 44.308.
44.201 Citizen Dispute Settlement Centers; establishment; operation; confidentiality.—(1) The chief judge of a judicial circuit, after consultation with the board of county commissioners of a county or with two or more boards of county commissioners of counties within the judicial circuit, may establish a Citizen Dispute Settlement Center for such county or counties, with the approval of the Chief Justice.
(2)(a) Each Citizen Dispute Settlement Center shall be administered in accordance with rules adopted by a council composed of at least seven members. The chief judge of the judicial circuit shall serve as chair of the council and shall appoint the other members of the council. The membership of the council shall include a representative of the state attorney, each sheriff, a county court judge, and each board of county commissioners within the geographical jurisdiction of the center. In addition, council membership shall include two members of the general public who are not representatives of such officers or boards. The membership of the council also may include other interested persons.(b) The council shall establish qualifications for and appoint a director of the center. The director shall administer the operations of the center.(c) A council may seek and accept contributions from counties and municipalities within the geographical jurisdiction of the Citizen Dispute Settlement Center and from agencies of the Federal Government, private sources, and other available funds and may expend such funds to carry out the purposes of this section.
(3) The Citizen Dispute Settlement Center, subject to the approval of the council and the Chief Justice, shall formulate and implement a plan for creating an informal forum for the mediation and settlement of disputes. Such plan shall prescribe:(a) Objectives and purposes of the center;(b) Procedures for filing complaints with the center and for scheduling informal mediation sessions with the parties to a complaint;(c) Screening procedures to ensure that each dispute mediated by the center meets the criteria of fitness for mediation as set by the council;(d) Procedures for rejecting any dispute which does not meet the established criteria of fitness for mediation;(e) Procedures for giving notice of the time, place, and nature of the mediation session to the parties and for conducting mediation sessions;(f) Procedures to ensure that participation by all parties is voluntary; and(g) Procedures by which any dispute that was referred to the center by a law enforcement agency, state attorney, court, or other agency and that fails at mediation, or that reaches settlement that is later breached, is reported to the referring agency.
(4)(a) Each mediation session conducted by a Citizen Dispute Settlement Center shall be nonjudicial and informal. No adjudication, sanction, or penalty may be made or imposed by the mediator or the center.(b) A Citizen Dispute Settlement Center may refer the parties to judicial or nonjudicial supportive service agencies.
(5) Any information relating to a dispute obtained by any person while performing any duties for the center from the files, reports, case summaries, mediator’s notes, or other communications or materials is exempt from the provisions of s. 119.07(1).
(6) No officer, council member, employee, volunteer, or agent of a Citizen Dispute Settlement Center shall be held liable for civil damages for any act or omission in the scope of employment or function, unless such person acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the rights, safety, or property of another.
(7) Any Citizen Dispute Settlement Center in operation on October 1, 1985, may continue its operations in its current form with the approval of the chief judge of the judicial circuit in which such center is located, except that paragraph (4)(b) and subsections (5) and (6) shall apply to such centers.
(8) Any utility regulated by the Florida Public Service Commission is excluded from the provisions of this act.
History.—s. 2, ch. 85-228; s. 16, ch. 90-360; s. 263, ch. 95-147; s. 19, ch. 96-406; s. 3, ch. 2004-291.
44.401 Mediation Confidentiality and Privilege Act.—Sections 44.401-44.406 may be known by the popular name the “Mediation Confidentiality and Privilege Act.”
History.—s. 4, ch. 2004-291.
44.402 Scope.—(1) Except as otherwise provided, ss. 44.401-44.406 apply to any mediation:(a) Required by statute, court rule, agency rule or order, oral or written case-specific court order, or court administrative order;(b) Conducted under ss. 44.401-44.406 by express agreement of the mediation parties; or(c) Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by ss. 44.401-44.406.(2) Notwithstanding any other provision, the mediation parties may agree in writing that any or all of s. 44.405(1), s. 44.405(2), or s. 44.406 will not apply to all or part of a mediation proceeding.
History.—s. 4, ch. 2004-291.
44.403 Mediation Confidentiality and Privilege Act; definitions.—As used in ss. 44.401-44.406, the term:(1) “Mediation communication” means an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.(2) “Mediation participant” means a mediation party or a person who attends a mediation in person or by telephone, videoconference, or other electronic means.(3) “Mediation party” or “party” means a person participating directly, or through a designated representative, in a mediation and a person who:(a) Is a named party;(b) Is a real party in interest; or(c) Would be a named party or real party in interest if an action relating to the subject matter of the mediation were brought in a court of law.(4) “Mediator” means a neutral, impartial third person who facilitates the mediation process. The mediator’s role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be.(5) “Subsequent proceeding” means an adjudicative process that follows a mediation, including related discovery.
History.—s. 4, ch. 2004-291.
44.404 Mediation; duration.—(1) A court-ordered mediation begins when an order is issued by the court and ends when:(a) A partial or complete settlement agreement, intended to resolve the dispute and end the mediation, is signed by the parties and, if required by law, approved by the court;(b) The mediator declares an impasse by reporting to the court or the parties the lack of an agreement;(c) The mediation is terminated by court order, court rule, or applicable law; or(d) The mediation is terminated, after party compliance with the court order to appear at mediation, by:1. Agreement of the parties; or2. One party giving written notice to all other parties in a multiparty mediation that the one party is terminating its participation in the mediation. Under this circumstance, the termination is effective only for the withdrawing party.(2) In all other mediations, the mediation begins when the parties agree to mediate or as required by agency rule, agency order, or statute, whichever occurs earlier, and ends when:(a) A partial or complete settlement agreement, intended to resolve the dispute and end the mediation, is signed by the parties and, if required by law, approved by the court;(b) The mediator declares an impasse to the parties;(c) The mediation is terminated by court order, court rule, or applicable law; or(d) The mediation is terminated by:1. Agreement of the parties; or2. One party giving notice to all other parties in a multiparty mediation that the one party is terminating its participation in the mediation. Under this circumstance, the termination is effective only for the withdrawing party.
History.—s. 4, ch. 2004-291.
44.405 Confidentiality; privilege; exceptions.—(1) Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel. A violation of this section may be remedied as provided by s. 44.406. If the mediation is court ordered, a violation of this section may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.(2) A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.(3) If, in a mediation involving more than two parties, a party gives written notice to the other parties that the party is terminating its participation in the mediation, the party giving notice shall have a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding only those mediation communications that occurred prior to the delivery of the written notice of termination of mediation to the other parties.(4)(a) Notwithstanding subsections (1) and (2), there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication:1. For which the confidentiality or privilege against disclosure has been waived by all parties;2. That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;3. That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report;4. Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding;5. Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or6. Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.(b) A mediation communication disclosed under any provision of subparagraph (a)3., subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6. remains confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.(5) Information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation.(6) A party that discloses or makes a representation about a privileged mediation communication waives that privilege, but only to the extent necessary for the other party to respond to the disclosure or representation.
History.—s. 4, ch. 2004-291.
44.406 Confidentiality; civil remedies.—(1) Any mediation participant who knowingly and willfully discloses a mediation communication in violation of s. 44.405 shall, upon application by any party to a court of competent jurisdiction, be subject to remedies, including:(a) Equitable relief.(b) Compensatory damages.(c) Attorney’s fees, mediator’s fees, and costs incurred in the mediation proceeding.(d) Reasonable attorney’s fees and costs incurred in the application for remedies under this section.(2) Notwithstanding any other law, an application for relief filed under this section may not be commenced later than 2 years after the date on which the party had a reasonable opportunity to discover the breach of confidentiality, but in no case more than 4 years after the date of the breach.(3) A mediation participant shall not be subject to a civil action under this section for lawful compliance with the provisions of s. 119.07.History.—s. 4, ch. 2004-291.
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.