The Florida Rules for Certified & Court-Appointed Mediators define mediation as a process where a mediator acts to encourage and facilitate resolution of a dispute. (R. 10.210.) The mediator’s role is to reduce obstacles to communication, assist in identification of issues and exploration of alternatives. However, the rules emphasize that the parties have the ultimate decision-making authority, and that coercion by the mediator to force a settlement is unethical. (R. 10.310.) Nevertheless, the Committee Notes recognize various techniques and styles from mediator to mediator. This seems to give some degree of latitude to the mediator to assist in bringing the parties to resolution. After all, this is the purpose of the process, and the reason most Florida courts require a case to be mediated before it can proceed to trial.
Why, then, do some cases settle and some do not? Of course, the reasons are numerous. However, mediators and counsel sometimes focus on the economic aspects of the case, and overlook the fact that mediation is about people and their problems, not just about money. The mediator must use his skill to help relax the parties and give them hope that their case can be resolved if the process is allowed to work.
Parties to a lawsuit come from all walks of life. Some are professional or business people, others are members of the workforce, and some are homemakers. They all come with different points of view about life. It is, therefore, the responsibility of the mediator to open their minds to the possibility of resolution. The mediator has to slowly gain the confidence of the parties and the lawyers. They are looking for leadership and rely upon the mediator for this.
It is the responsibility of the mediator to find out what the real needs and goals of the parties are. Is the lawsuit about principle, or about the need of the parties to be heard and to come away feeling that they are worth something? The mediator can find this out by talking to them. I have seen many situations where it’s really not about the money, but that the money offered is a statement to the person about what the system thinks that party is worth as a person. This is a difficult task, but through individual caucuses, and listening to the parties, the mediator must work with both sides to validate the various concerns of all parties. Business interests must, of course, be satisfied. However, allowing a person to tell his story, validating his concerns, while also explaining the limitations of the litigation process, often leads to breakthroughs in obtaining resolution.