Should I consider pre-suit mediation
Mediating voluntarily before a lawsuit is called pre-suit mediation. It can completely resolve the dispute at a low cost. If it does not settle, pre-suit mediation can still shape and narrow the issues for litigation and help to contain the future litigation expenses. The benefits of pre-suit mediation and whether it makes sense in a given scenario should be an early discussion between you and your business lawyer.
How does mediation work Before the mediation the parties select the mediator. The mediator is often an experienced attorney or retired judge. Mediators undergo special training and are certified by the Florida Supreme Court. In a lawsuit if the parties cannot agree then sometimes the judge may choose for them. The mediator then works with the parties to schedule the mediation and sends an engagement letter to the lawyers for the parties. The parties are generally equally responsible for the fees of the mediator under the engagement letter. The engagement letter also invites each side to send a confidential mediation summary to the mediator in advance of the actual mediation.
The mediation itself normally starts with the parties in the same room. The mediator will explain how the process will work. The mediator will also state that everything said and presented in the mediation is confidential under Florida law. Each attorney then makes opening remarks to frame their perception of the dispute for the mediator and the opposing side. The parties then move to separate rooms where the mediator meets privately with each several times. The function of the mediator is not to decide the case. The goal of the mediator is to help the parties see their dispute differently and to consider a compromise on certain points with the end result being a full or partial settlement.
How is presuit mediation different Presuit mediation is no different than ordinary mediation except it occurs before any lawsuit is filed. It can be done by agreement between the parties in a dispute. It may also be required by a written contract between businesses. Mediating before a lawsuit can reduce or eliminate future litigation costs. It can also provide an opportunity for the parties to objectively review their developing dispute with the assistance of a neutral mediator.
With presuit mediation the parties retain their right to litigate their dispute if they do not settle. Thus presuit mediation clauses in a contract give the parties an informal and less costly opportunity to resolve any disputes. The only real cost is that of the mediation itself. But the fee for the mediator is far less than the expense of a lawsuit.
Conclusion Whether to include a presuit mediation provision in a contract or agree to one proposed to you is something to discuss with your business lawyer. Presuit mediation is beneficial in that it can resolve a dispute before it becomes a lawsuit. It is also useful in setting the groundwork for a future resolution should on not be reached at the presuit mediation. Lastly, even where no settlement is reached, presuit mediation can help shape and narrow the issues to be litigated which saves time and money later.
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Written by David Steinfeld
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.