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If your company is suing or being sued in a Florida circuit court, expect the case schedule to include a deadline for mediation or another form of alternative dispute resolution. Mediation in Florida is an informal, nonadversarial settlement process run by a neutral mediator, and the rules governing it decide who must show up, what you can safely say, and when a handshake becomes a binding deal.
Mediation is not a trial and not a formality: the mediator cannot decide your case, but anything you sign at the table can end it.
What Is Mediation in a Florida Business Dispute?
Mediation is a negotiation led by a neutral third party who helps the two sides reach their own agreement. Under chapter 44, Florida Statutes, “decisionmaking authority rests with the parties.”
That is the core difference from arbitration, where a neutral hears evidence and issues a decision. Our overview of the basic differences between arbitration and mediation walks through that contrast.
A mediator may still talk about the merits. Under the Florida Rules for Certified and Court-Appointed Mediators, a certified or court-appointed mediator, consistent with impartiality and the parties’ right to decide for themselves, “may point out possible outcomes of the case and discuss the merits of a claim or defense.” What that mediator may not do is offer an opinion on how the court handling your case will resolve it, or offer an opinion meant to coerce or unduly influence the parties or to decide the dispute.
When Does a Florida Court Send a Business Case to Mediation?
A court can order mediation in almost any contested civil case, and in some cases it must. Under section 44.102, Florida Statutes, a court must refer a filed civil action for money damages to mediation when one party asks and is willing and able to pay the cost, or the cost can be fairly divided between the parties.
That mandatory referral has exceptions. Among them:
- Actions filed to collect a debt
- Landlord and tenant disputes that do not include a personal injury claim
- Cases where the parties have agreed to binding arbitration
Even without a request, the case schedule itself can require it. Under the Florida Rules of Civil Procedure, the case management order in streamlined and general cases must set a deadline for completing alternative dispute resolution. Our posts on the stages of a business lawsuit and how long a business lawsuit takes in Florida show where that deadline falls.
A contract may also require mediation before anyone sues, so review the dispute resolution clause in your partnership agreement early.
What Deadlines Apply Once Mediation Is Ordered?
Court-ordered mediation runs on short clocks:
- Unless the court orders otherwise, the first conference must be held within 60 days of the order of referral.
- A party may move to dispense with mediation within 15 days after the order of referral, for reasons such as the same issue having already been mediated between the same parties, or the issue presenting a question of law only.
- Mediation must be completed within 45 days of the first conference, unless extended by court order or stipulation.
Mediation does not pause the rest of the case. Unless the parties stipulate or the court orders otherwise, discovery in business litigation continues while mediation is pending.
How Is the Mediator Chosen and Paid?
The parties have 10 days from the order of referral to agree on a mediator. If they cannot, the plaintiff must notify the court, which appoints a certified mediator. At either party’s request, the court must appoint a certified circuit court mediator who is a member of The Florida Bar.
Absent a written fee agreement, the mediator is paid at the hourly rate set in the referral order, with each party paying a proportionate share where appropriate. A party that objects to the rate must serve its objection within 15 days of the order of referral.
Who Has to Attend a Florida Mediation?
Your company must send someone who can actually settle. A party is deemed to appear if these people attend in person, or by communication technology when allowed:
- The party, or a party representative with full authority to settle without further consultation
- The party’s counsel of record, if any
- For an insured party, an insurance carrier representative, other than the carrier’s outside counsel, with full authority to settle up to the lesser of the plaintiff’s last demand or the policy limits without further consultation
“Full authority” means the final decision maker on all issues in the case, with the legal capacity to sign a binding settlement on the company’s behalf. Showing up with authority does not require you to settle.
Unless the parties stipulate otherwise, each party must file and serve a notice 10 days before the conference naming its representatives and confirming their authority. If a party fails to appear without good cause, the court, on motion, must impose sanctions that include mediation fees, attorneys’ fees, and costs. A missing authority notice, or a no-show by the person named in it, creates a rebuttable presumption of a failure to appear.
If your operating agreement or bylaws require a vote to approve a settlement, get that approval or delegation in place before mediation, not during it. Our lawsuit defense attorneys help clients position a case for settlement, including at mediation.
What Happens During the Mediation Session?
The rules give the mediator control of the procedure, allow counsel to speak privately with their clients, and allow the mediator to meet privately with either side. The mediator may also adjourn and set a time to reconvene.
Come prepared to negotiate numbers, not just arguments. That means knowing:
- What breach of contract damages you can actually recover in Florida
- What the case will cost through trial
- What payment terms your business can live with (see our post on settlement strategies that protect cash flow)
Is What You Say at Mediation Confidential?
Yes, with limits. Under section 44.405, Florida Statutes, mediation communications are confidential, and a party can refuse to testify, and prevent others from testifying, about them in a later proceeding.
The protection has limits:
- A signed written agreement is not confidential, unless the parties agree otherwise.
- Evidence does not become protected by being shown at mediation. Information that is otherwise admissible or discoverable stays that way.
- Other exceptions apply, including waiver by all parties and communications willfully used to plan or commit a crime or threaten violence.
The confidentiality statute applies automatically when mediation is required by statute, court rule, agency rule, or court order, and when a Florida Supreme Court certified mediator conducts it unless the parties expressly agree otherwise. In a private, pre-suit mediation with an uncertified mediator, the parties should expressly agree in writing that the act applies.
A participant who knowingly and willfully discloses a mediation communication may be ordered, on a party’s application to the court, to pay compensatory damages, attorneys’ fees, mediator’s fees, and costs, and may face equitable relief. The application must be filed within 2 years after the party had a reasonable opportunity to discover the breach, and never more than 4 years after it.
What Happens If the Case Settles, or Does Not?
If You Reach an Agreement
A full or partial agreement must be reduced to writing and signed by each party or its representative with full authority to settle. Signatures may be original or electronic and may be in counterparts. The mediator then reports the agreement to the court within 10 days.
Do not leave the room without a signed writing. A Florida appeals court has refused to enforce a mediated settlement that was not signed as the rule required. Outside mediation, at least one Florida court has held that a settlement reached through attorney emails can bind a party without a signed agreement when counsel had clear authority to settle and no essential terms were left open. Watch what you agree to by email after an impasse.
If a party later breaches the mediated agreement, the court may impose sanctions on motion, including costs, attorneys’ fees, and entry of judgment on the agreement.
If Mediation Ends in Impasse
When no agreement is reached, the mediator reports that fact to the court without comment or recommendation.
Under section 44.102, the time to respond to an offer or demand for judgment is tolled during court-ordered mediation until the mediator declares an impasse or reports no agreement. A new offer can be made at any time after that point. Our post on early defense and settlement leverage explains how offers of judgment can shift fee exposure.
How Jimerson Birr Helps Businesses Prepare for Mediation
Jimerson Birr’s business litigation and arbitration and mediation attorneys represent Florida companies at mediation on both sides of commercial disputes. We prepare clients on authority, valuation, and settlement terms before the conference, so the decision at the table is an informed one.