What Should I Expect During the Mediation Process?
If you’ve been a small business owner long enough, you’ll probably have a dispute at some point. If the dispute cannot be resolved amicably with the other party (whether it be an employee, a vendor, or a customer), hiring an attorney is often your next step. Most small business owners prefer to avoid litigation whenever possible, as it can be expensive, time-consuming, and stressful. An excellent alternative to litigation is mediation.
At its core, mediation is a voluntary process where a neutral third party – the mediator – guides two or more parties in dispute through their conflict. The purpose of this semi-formal process is to ensure all parties’ concerns are heard, allowing them to generate their own solution via a productive dialogue.
Most of our clients who hire us for our mediation services usually have two questions:
- How much does mediation cost, and
- What should I expect during the mediation process?
In this blog, we will address the second question.
The Mediation Process
Our founder, Rory Weiner, is an experienced Supreme Court Certified Circuit Court Mediator who describes mediation as a scenario in which “there is no winner or loser; there is only an opportunity to resolve your case.” Mediation is usually voluntary, and both parties agree to attend due to their desire to settle a dispute, the purpose of which is to find a compromise or resolution out of court. Sometimes, mediation is court-ordered, and in the State of Florida, it’s a prerequisite to trial. In any scenario, the process of mediation is the same. The typical steps of meditation are:
Step 1: Find a mediator
This one seems obvious, but it is sometimes the tricky part! Finding a skilled mediator is essential to being satisfied with the outcomes of your mediation. Since the purpose of mediation is to compromise, one party will only get some of what they want (and that may be you); working with a mediator you can trust should be your priority.
Step 2: Schedule your mediation
Your next step is to determine your mediation date. It is essential to arrive on time for this meeting; we recommend you arrive 30 minutes early to account for parking and locating the office. All parties (and their attorneys, if they have them) will meet, usually in a conference room at the mediator’s office. The mediator will explain the mediation process and their role in that process, and mediation begins.
Step 3: Explain your side of the dispute
After the mediator’s introduction, each party can “tell their side of the story” or explain their side of the dispute. If your attorney is present at the mediation, they will usually do this part for you as their “opening remark.” If you would like to speak, you will be allowed to do so at this time. Remember that anything you say during mediation is strictly confidential, promoting openness and discussion. No one will hold you to those offers or statements you might make about your position during mediation, encouraging openness and ushering in compromise.
Step 4: Go into separate rooms
Once each party makes opening remarks, they will meet in separate rooms for discussion. Usually, the mediator will meet with the plaintiff and have a confidential conversation to review their offer. Next, the mediator will meet in a different room with the defendant and present that offer, only sharing details authorized by the plaintiff. During these private meetings, the mediator will provide honest feedback to the parties about their position and how the other party may interpret it.
Step 5: Counteroffers
After the mediator meets privately with both parties, the defendant will usually present a counteroffer (they will rarely accept your terms the first time around). At this point, the mediator might repeatedly go back and forth between the parties presenting counteroffers.
Step 6: Settlement or continuation
Hopefully, after the counteroffer rounds, the parties will reach an agreement (or “settlement”). If no settlement occurs during the first mediation attempt, the parties are permitted to continue negotiations between themselves to try to reach an agreement about the dispute. Alternatively, they can book another mediation session and re-do the above steps another day.
Top benefits of mediation
Mediation has many benefits, including reducing stress on the court system and increasing the chances of positive outcomes in a dispute. Our founder, Rory Weiner, likes doing mediation “because it helps parties get some closure on their dispute in a way that they decide, not a judge or jury. It’s almost impossible to know with any degree of accuracy what a jury or a judge will decide.” Most people want to be in control of their business outcomes, and disputes are certainly no exception. The stress of a business dispute takes a toll on all parties involved, and that loss of control compounds the pressure. Weiner states, “When we settle in mediation, you can see the clients transform right before you from relief. They usually take a deep breath and are happy it’s over.” Ushering in that relief is one of the best parts of the job.
According to the U.S. Office of Special Counsel, the top benefits of meditation are that it:
Is informal. The process is informal and flexible; attorneys are not necessary. There are no formal rules of evidence and no witnesses.
Is confidential. Mediation is a confidential process. The mediators will not disclose any information revealed during the mediation. The sessions are not tape-recorded or transcribed. At the conclusion of the mediation, mediators destroy any notes they took during the mediation session.
Is quick and inexpensive. When parties want to get on with their business and their lives, mediation is an option to consider. Mediation generally takes less time to complete, allowing for an earlier solution than is possible through investigation.
Gives the parties a greater degree of control. Parties who negotiate their own settlements have more control over the outcome of their dispute. Parties have an equal say in the process. There is no determination of fault, but rather, the parties reach a mutually agreeable resolution to their conflict.
Can preserve relationships. Many disputes occur in the context of ongoing work relationships. Mediated settlements that address all parties’ interests often preserve working relationships in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a work relationship more amicable.
Can provide a higher chance of mutually satisfactory results. Parties are generally more satisfied with solutions that they have had a hand in creating, as opposed to solutions that are imposed by a third-party decision maker.
Allows for comprehensive and customized agreements. Mediated agreements often help resolve procedural and interpersonal issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation and attend to the fine details of implementation.
Provides a foundation for future problem-solving. After a mediation resolution, if a subsequent dispute occurs, parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
When litigation is required
In Hillsborough County, mediation must be performed before a case can be heard in court. The primary purpose of this law is to reduce the stress on the court system, and peripheral benefits include reduced emotional and financial strain on the parties. Unfortunately, not every party in a dispute comes to the table in an honest attempt to resolve the situation, and they see mediation as a stepping stone to getting to court. These people tend to be argumentative, hostile, and unwilling to compromise; with this personality type, litigation frequently occurs. Even when all parties attend mediation with the hope of achieving a resolution, sometimes this does not happen despite everyone’s best efforts, and litigation ultimately occurs out of actual necessity.
Mediator in Hillsborough County
Whatever your reason for attempting mediation, we can help you. We provide expert mediation services to Hillsborough County business owners and have over 20 years of legal experience resolving disputes out of court. Click here to contact us today to start a conversation about your case – we look forward to helping you resolve it!