Mediation Services

M&B Family Law & Mediation Services provides mediation services to attorneys and their clients throughout Brevard County. Contact Attorney Clay Morgan, a State Certified Mediator. He can work with both parties  involved in a dispute to find resolution.

What is mediation?

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. 

Advantages to Mediation

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.

What is a mediator?

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.

What happens in mediation?

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.

Tips on How to Prepare for a Mediation

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.
• Get organized: 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
• Come prepared: 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.
• Set goals: 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.