SECOND EDITION FLORIDA MEDIATION BEST PRACTICES

FLORIDA MEDIATION BEST PRACTICES HANDBOOK

Dedicated to the litigants, lawyers, mediators and judges of the State of Florida.

SECOND EDITION

INTRODUCTION

Mediators and trial lawyers of the Hillsborough County Bar Association (HCBA) engaged

in a historic collaboration to create the first Florida Mediation Best Practices Handbook to make

mediation more efficient and productive. This collaboration occurred during a world-wide

pandemic where jury trials came to a halt for over a year and judges and court administrators

struggled to find a proper balance between public health and the right to a jury trial. Nearly all

legal proceedings quickly transitioned to “virtual” events, including mediation. With civil jury

trials suspended, the resulting backlog of over 1.5 million cases in Florida made mediation more

critical than ever to protect the rights of litigants and preserve the continued administration of

justice.

These unprecedented challenges have led to a need for more productive approaches to

mediation. In response, mediators and trial lawyers of the HCBA created the Florida Mediation

Best Practices Handbook for lawyers and mediators to become better partners with each other

and their clients. A survey was circulated to collect the best ideas available, and over 200 lawyers,

mediators, judges and legal assistants from across the country contributed their advice for

improving mediation outcomes.

The survey was followed by the first ever “Mediator Litigator Forum” to discuss ways to

improve the mediation process. Thereafter, a panel of six persons, three mediators and three

trial lawyers, including a former judge, assembled the Florida Mediation Best Practices Handbook.

When contested issues arose, they were resolved by a majority vote. The panel’s work was

guided by the ethical rules and statutes of the State of Florida governing mediation. (Unless

otherwise indicated, the term “Rule” applies to the Florida Rules for Certified and Court-

Appointed Mediators.)

This project could not have been accomplished without significant cooperation. Thanks

go out to the members of the panel for their outstanding commitment: Judge Martha Cook, Chad

Moore, Harold Oehler, Cory Person, Tom Scarritt, and Dale Sisco. Many thanks to HCBA President

Paige Greenlee and Executive Director John Kynes, and his staff, for their leadership and support.

Special thanks also go out to Kim Joyner-Diaz, Greg Kehoe, Bobby Santos, Ellen Shulman, The

Honorable Judge Rex M. Barbas and The Honorable Chief Judge Ronald Ficarrotta, who provided

insight during the creation of the Handbook. The greatest thanks, however, go to the more than

200 legal professionals who contributed their ideas to empower litigants to choose their own

outcomes by resolving their disputes through mediation.

Our vision is that you will play a unique role in the development of the Florida Mediation

Best Practices Handbook, which will continue to be updated with suggestions and insights which

we hope you will continually share with us. Your suggestions may be submitted to the Chair of

the HCBA Section for Mediation and Arbitration who will collect recommendations throughout

the year for the Handbook’s periodic revision. In that way, the Florida Mediation Best Practices

Handbook will continue to be a living document that we believe will provide the most

SECOND EDITION ACKNOWLEDGEMENTS

In the past, trial lawyers were defined by their skill in the courtroom. As over 90% of cases

now settle prior to trial, and most of those cases settle during mediation, trial lawyers are now also

defined by their skill at achieving their client’s objectives in the mediation room. Trial lawyers

and mediators came together to create the Florida Mediation Best Practices Handbook to

collaboratively improve the mediation process and to provide each other the tools to practice

mediation advocacy, as defined on these pages, at an elite level.

This partnership between trial lawyers and mediators, which began in Hillsborough

County, Florida, expanded to the entire State of Florida in 2022. The Florida Bar’s Trial Lawyers

Section and Alternative Dispute Resolution (ADR) Section collaborated to host the first state-wide

Litigator Mediator Forum at the 2022 Florida Bar Convention. The Florida Bar chose the Forum

as its “Florida Bar President’s Showcase” CLE for the Convention and trial lawyers and mediators

from around the State came together to share their knowledge both live and virtually. Suggestions

for improving the mediation process were collected from the live and online audience and shared

with the editors of the Second Edition of the Handbook. After the Forum, the Trial and ADR

Sections co-hosted a reception to continue the conversation between trial lawyers and mediators

regarding how they may improve the mediation process together.

Viola Clark, a graphic facilitation artist, monitored the audience’s ideas for improving

mediation during the Forum and created a work of art depicting the ideas the audience shared.

This work of art was commissioned to adorn the cover of the Second Edition. The art symbolizes

the new state-wide partnership between trial lawyers and mediators to collaboratively improve the

mediation process.

Special thanks to the staff members of the Florida Bar, the Executive Committees of the

Trial Lawyers and ADR Sections and to the panel members of the Florida Bar’s Forum: Tad David,

Geddis Anderson, Mark McLaughlin, Shirin Vesely, Christy Foley, The Honorable Retired Judge

Frederick J. Lauten and Harold Oehler. Cristina Maldonado, Kim Torres, Sheridan Hughes and

Jennifer Dorminy were also instrumental in planning the Florida Bar’s first state-wide Litigator

Mediator Forum. Special thanks to all participants who participated in this historic meeting,

including all Table Hosts and Table Recorders who collected the audience’s recommendations.

The Florida Dispute Resolution Center, especially Tad David and Kim Kosch, are invaluable

partners in encouraging all mediation participants across the State to join this growing

collaboration to improve mediation and raise awareness regarding the ethical responsibilities of

the mediation process.

Special thanks to the Editors of the Second Edition: AnnMarie Davis, Erin Jackson,

Anthony Palermo, Kim Joyner-Diaz, the Honorable Retired Judge Gregory P. Holder, and Harold

Oehler. Also instrumental were the Trial and Litigation Section and the Mediation and Arbitration

Section of the Hillsborough County Bar Association (HCBA) and the HCBA’s staff, particularly

Executive Director John Kynes, Monique Lawson, Derek Jardeleza as well as HCBA President

Cory Person. The Editors thank ADR Section President Kathleen McLeroy and Amber Boles for

authoring the E-Discovery supplement and the Marital and Family Law supplement, respectively.

TABLE OF CONTENTS

I. MEDIATION BEST PRACTICES FOR THE MEDIATOR ............................................................ 2

A. PRE-MEDIATION ...................................................................................................... 2

B. BEST PRACTICES THAT APPLY TO THE ENTIRE MEDIATION ..................................... 4

C. JOINT CAUCUS AND OPENING STATEMENTS BY THE MEDIATOR AND

PARTIES ................................................................................................................... 6

D. CAUCUSES ............................................................................................................... 7

E. CROSS CAUCUS ...................................................................................................... 10

F. AFTER A SETTLEMENT IN PRINCIPLE OR AN IMPASSE IS REACHED ....................... 10

G. POST MEDIATION .................................................................................................. 11

II. MEDIATION BEST PRACTICES FOR THE TRIAL LAWYER .................................................... 11

A. PRE-MEDIATION .................................................................................................... 11

B. BEST PRACTICES THAT APPLY TO THE ENTIRE MEDIATION ................................... 13

C. JOINT CAUCUS AND OPENING STATEMENTS OF COUNSEL ................................... 14

D. CAUCUSES ............................................................................................................. 15

E. CROSS CAUCUS ...................................................................................................... 15

F. AFTER A SETTLEMENT AGREEMENT OR AN IMPASSE IS REACHED. ...................... 16

G. POST MEDIATION .................................................................................................. 17

ATTACHMENTS

1. Notice of Mediation

2. Notice of Virtual Mediation

3. Mediation Confirmation Letter

4. Mediation Engagement, Confirmation and Disclosure Agreement

5. Settlement Agreement and Stipulation (Pre-suit Mediation)

6. Settlement Agreement and Stipulation of Parties (Claim in Litigation)

7. Mediation Results Report (State)

8. Mediation Report (Federal)

9. Mediation Stipulation and Agreement

10. “The Mediation Process Explained”

11. Recommended Reading List

12. E-Discovery Mediation Supplement

13. Marital and Family Law Mediation Supplement

I. MEDIATION BEST PRACTICES FOR THE MEDIATOR

A. PRE-MEDIATION

1. Scheduling

• Ensure that your website contains an up-to-date calendar, biography or

resume, and rates and terms.

• Periodically review MEAC opinions regarding conflicts of interest. Disclose

and resolve any potential conflict of interest immediately. (Rule 10.340)

• Decline an appointment, withdraw, or request appropriate assistance

when a case is beyond your area of expertise or experience. (See Rule

10.640)

• Confirm who will be filing the Notice of Mediation.

• Promptly deliver the documents confirming the mediation and describing

your rates and terms.

Provide clear terms and instructions regarding any

deposit, cancellation, postponement, fee split, payment terms, etc. (See

Rule 10.380)

• In your correspondence accepting the assignment, courteously remind

counsel to file a Certification of Authority as required by Rule 1.720(e) of

the Florida Rules of Civil Procedure.

• Promptly respond to emails and telephone messages.

• Communicate to attorneys and legal staff in a courteous and professional

manner. (Rule 10.350)

• Do not schedule more than one circuit court mediation during a morning

and one in an afternoon. (See Rule 10.430)

• It is generally not advisable to state an end time for a mediation. (See Rule

10.430)

See Attachment 1: “Notice of Mediation – In Person” and Attachment 2: “Notice of Virtual Mediation”

See Attachment 3: “Mediation Confirmation Letter and Attachment 4: “Mediation Engagement, Confirmation and

Disclosure Agreement.

• Be flexible and client friendly regarding rescheduling and cancellation fees.

• Virtual Mediations: The mediator should set up and control the virtual

platform. Send invitations, including log-in instructions, as early as

possible.

2. Preparing for Mediation

• Approach the mediation with the attitude that your role is to serve the

participants. Be curious about the needs of the parties, besides the money,

and help the parties find mutually beneficial solutions to fulfill those

needs.

• Identify and understand the factual and legal issues involved and the

applicable law.

• Read all materials submitted by the parties. Review the court file to learn

the litigation history, pending motions and deadlines, whether a trial date

is set and the identity of the judge. The court file will often provide insight

into the intensity of the dispute, the relationship of counsel and the parties

and the level of emotion in the case. If a party does not provide a

mediation summary, request relevant pleadings, discovery responses,

medical or damages summaries, etc.

• Call each party’s counsel prior to mediation to discuss the case, the legal

and factual issues, the personalities of the parties involved, each party’s

Best Alternative to a Negotiated Agreement (BATNA), Worst Alternative to

a Negotiated Agreement (WATNA), Probable Alternative to a Negotiated

Agreement (PATNA), prior negotiations, potential settlement options and

obstacles to settlement. Discuss counsel’s experience with the judge

during the present case or prior cases.

• If the party is not represented by counsel, conduct the pre-mediation call

with the pro se party. Special care must be taken to inform the pro se party

about the process. Consider providing the pro se party a written

explanation of the process.

• Confirm with each counsel, or pro se party, that an individual with

authority to settle the case will be present. This includes an adjuster if

insurance is involved.

• If there are additional documents or other information which would be

helpful during the mediation, request that counsel provide the information

to the mediator and to the opposing party.

See Attachment 10: The Mediation Process Explained.

• Take time before the mediation to analyze each party’s position and

interests. Consider the emotional state of each party and how that might

impact their willingness to settle.

• If the value of the claim is at issue, ask the lawyers to provide verdicts from

similar cases.

• Ask at least one counsel to prepare a draft settlement agreement prior to

the mediation with blanks for the negotiated terms. This will serve as the

blueprint for settlement, avoid the delay caused by drafting a document

during the mediation, help prevent the omission of a material term and

allow the parties to execute the settlement agreement before leaving the

mediation.

• After speaking with counsel for each party, the mediator should develop

and utilize an individualized mediation strategy for each party based on

the unique interests, needs, circumstances and personalities involved.

• Become a student of negotiation techniques and cognitive biases. Study

techniques to encourage cooperation among parties with different

personalities and competing interests.

(Rule 10.630)

• Virtual Mediations: Be well versed in the virtual platform’s technology,

security settings and the process for handling common problems such as a

lost connection. (Rule 10.630 and Rule 10.640) Confirm how the parties

will execute the settlement agreement prior to the mediation. (Rule

10.420 (c)) Offer technology to facilitate remote signing of documents such

as Adobe or Docusign and be skilled with utilizing the technology.

B. BEST PRACTICES THAT APPLY TO THE ENTIRE MEDIATION

• Ethical Canon of Self-Determination: Mediation is a process to facilitate

agreement between disputing parties and assist them in voluntarily

resolving their dispute. A parties’ right to self-determination (a free and

informed choice to agree or not agree) must be preserved during all phases

of the mediation. (See Rule 10.310)

• A good mediator understands the law. A great mediator understands the

people.

• Mediation is an “informal and non-adversarial process intended to help

disputing parties reach a mutually acceptable agreement.” (See Rule

10.210). Since the goal of mediation is to reach an agreement with the

opposing party, it is more like a transactional law event than an adversarial

proceeding. Mediation should therefore be approached the same way that

transactional lawyers achieve agreement between parties with competing

See Attachment 11: Recommended Reading List.

interests: by focusing on areas of mutual benefit, not conflict, and helping

the parties explore settlement options that satisfy the needs of both

parties.

• The mediator’s role includes, but is not limited to, assisting the parties in

identifying issues, discussing the strengths and weaknesses of positions,

fostering joint problem solving, exploring settlement alternatives,

evaluating resolution options and drafting settlement proposals. (See Fla.

Stat. §44.1011 (2) and Rule 10.220 and 10.370 and Committee Notes)

• A mediator must not substitute his/her judgment for the judgment of the

parties or coerce a party to make a decision. The mediator must also not

allow a participant to make a decision based on misrepresented facts made

by anyone.

• Never be focused on one solution and abandon all others. The mediator

may not impair the parties’ right of self- determination in any way. (See

Rule 10.310 and Committee Notes)

• Be a cheerleader and a referee. The mediator should maintain an

optimistic, confident and accommodating attitude throughout the

mediation. Always remain calm and reassuring. Never lose your patience

or composure.

• Always be objective and be careful not to inadvertently give the impression

that one side is favored over another. For instance, don’t spend a

disproportionate amount of time with one side during caucuses.

• Develop the habit of using curiosity over judgment to better understand

the parties. Listen not only to what parties say, but what their body

language is telling you.

• Use active listening to understand the goals of the parties and reframe the

communication when necessary to promote understanding. (See Rule

10.300 and Rule 10.350)

• Humor is the WD-40 of mediation. Use it liberally when testing positions,

use it to disarm a difficult individual or to relieve a stressful situation.

• Continuously involve the client representatives, and all participants, in the

mediation process. Do not question the client, however, without

permission from counsel.

• Ensure that all mediation participants are able to communicate in English

or make arrangements for an interpreter or online translation service if the

mediation is virtual.

• Be flexible and facilitate communication in the manner the parties wish to

promote self-determination. (see Rule 10.310)

• Take the opportunity to build a personal relationship by speaking to the

parties and attorneys when the opportunity arises before or during the

mediation. This is particularly important during a virtual mediation where

rapport is harder to establish.

• Make sure the rooms are sufficiently cool and have adequate WIFI and

power outlets. Ensure that WIFI passwords are visible. Make sure that

equipment necessary to edit and print the settlement agreement will be

available even if the mediation extends past business hours. Provide

coffee, soda, water, cookies, snacks, candy, etc. and confirm if there is a

desire for lunch or dinner. The more comfortable the parties are, the

longer they will work to resolve the dispute. Avoid providing the parties

unequal accommodations.

• Treat every person during the mediation with civility and professionalism.

Ensure that the parties are protected against hostile or unprofessional

behavior. (See Rule 10.350) Ask the parties to speak up if they are not

feeling well or if you need to take a break.

• Don’t rush the parties through any portion of the mediation. Don’t

terminate the mediation due to the time of day or other commitments.

This may be the only opportunity for the parties to mediate their case.

• Virtual Mediation: Host the virtual mediation and disable the recording

function. Encourage all participants to be visible, if possible, while

conferring with the mediator and the other party. Provide alternative

communication options in case a connection is lost. For example,

exchange telephone numbers or utilize a telephone conferencing system,

if necessary.

C. JOINT CAUCUS AND OPENING STATEMENTS BY THE MEDIATOR AND PARTIES

• Assemble the parties for a joint session, including Opening Statements, to

give the parties the opportunity to speak to each other and start building

a working relationship to help them work towards a settlement. Set the

tone from the start of the conference that mediation is a non-adversarial

proceeding. Explain that compromise is very important in every successful

mediation. When discussing confidentiality, explain that you will not

share information with another party without the disclosing party’s

consent. (See Rule 10.360)

• Present the mediator’s opening statement in an optimistic, calm and

confident fashion.

• Keep the mediator’s opening succinct. Don’t rush through the opening,

but include the mediator’s background and familiarity with the type of case

involved, neutrality, confidentiality, self-determination, certainty, cost

savings and explanation of the process. Specifically, explain that you as a

mediator are neutral and solely focused on helping the parties reach a

settlement. Explain that all communications during mediation are strictly

confidential unless the law provides otherwise. (see Rule 10.420)

• Emphasize that during mediation the parties have the ability to decide

their own outcome and that they will relinquish that power if they go to

trial. Also point out that mediation allows parties to choose creative

solutions not available at trial which can be implemented immediately and

far less expensively than through litigation.

• During the mediator’s opening, encourage the parties and their attorneys

to communicate with each other.

• Explain that Plaintiff traditionally speaks first since Plaintiff filed the suit.

• Prior to the mediation, encourage the parties to give civil, non-adversarial

opening statements. (See Rule 10.210).

• Encourage the parties to listen to the other side, even though they won’t

agree with everything they hear, so they are prepared for what will be

argued at trial. Point out that most parties who settle continue to disagree

on many issues but are still able to settle.

• Actively listen to the opening statements, and what the parties

communicate in each caucus, and search for the answer to the questions:

“What are the priorities for each party?” and “What’s really driving this

dispute?” Sometimes the answer is as simple as the need to be heard,

validated or respected.

• Keep the discussions focused on relevant matters.

• Diffuse an argumentative opening statement by restating the party’s

position in a non-emotional fashion. (See Rule 10.410)

• If a party becomes adversarial during joint session, move the parties to

separate caucus rooms immediately.

• Virtual Mediation: Ensure that each participant’s name is included in the

Zoom screen rather than a phone number, etc.

D. CAUCUSES

• Ask each side to describe a reasonable, positive outcome from their point

of view and list priorities for settlement. Priorities should be periodically

discussed as they may change during the mediation.

• Be the “Voice of Reality” for each party. A mediator should raise issues,

discuss the strengths and weaknesses each party’s position and help the

parties evaluate settlement options. (See Rule 10.370 and Committee

Notes) Consider asking each side “How” and “What” questions to gently

point out weaknesses, i.e. “What evidence will you use to support this

point?

• Acknowledge when a party appears nervous and assure them that no

decisions will be made without their approval.

• The mediator should ask questions to determine each party’s unique

needs and motivations for settlement beyond the money. Assist the

parties in exploring settlement proposals that satisfy the needs of the

parties.

• Allow the parties to guide the discussion regarding solutions rather than

urging the parties to accept the solution the mediator feels is best. If the

parties require assistance with formulating creative solutions, the

mediator should endeavor to offer creative solutions, beyond the money,

which satisfy the needs of the parties, while always preserving the parties’

right of self-determination.

• Mediators should not merely be number carriers but should be creative

and affirmatively seek out alternative solutions from the parties that

satisfy their interests. The mediator should also not merely engage in

“meet in the middle” negotiations.

• When suggesting any potential solution or making a Mediator’s Proposal,

the mediator must present the proposal in a manner that preserves the

parties’ right of self-determination. For instance, the mediator should

state “Have you considered…” rather than “You should consider…” (See

MEAC Opinion 2010-006) Never suggest that there is only one option. (See

Rule 10.370(c))

• Motivate movement by discussing each party’s BATNA, WATNA and

PATNA. (See above). The mediator may discuss possible outcomes but

must never predict how the case will be decided. (See Comments to Rule

10.370)

• Build trust by being empathetic and honest. (See Rule 10.350)

• Do not offer legal advice but encourage the parties to seek guidance of

counsel. (See Rule 10.370(b))

• Keep the caucus discussions succinct and focused on the parties and their

needs. Mediators should not waste time talking about themselves or

sharing war stories.

• Build rapport with each attorney and individual attending the mediation

by speaking to each person in a manner that makes them feel comfortable,

heard and respected. Be sensitive to different levels of sophistication and

experience. (see Rule 10.350 and 10.670) Speak to each individual in a

manner that makes them feel comfortable based on their level of

experience with the process.

• Identify the motivations and emotions behind each position and

demonstrate that you understand by repeating, reframing and/or

clarifying the party’s position. Address not only the factual and legal issues

but use empathy to address the parties’ feelings as well.

• Inquire whether a non-party’s interest will be impacted by any settlement.

(See Rule 10.300)

• Determine through questioning, whether a party, party representative,

counsel or other mediation participant, including a non-party attending or

not attending the mediation, is impeding settlement and explore their

reservations.

• Create momentum by obtaining agreement on small issues first.

• When a party suggests making a counter-productive offer, help the party

think through the consequences of that offer before the offer is

communicated.

• During long caucuses, check in with each side periodically to keep them

informed and engaged.

• Preparation, patience and persistence are essential. The best mediators

do not give up easily. Work with each party at their individual pace. Never

demonstrate impatience by word or action.

• To avoid a potential impasse, have the attorneys go over the next steps in

the litigation in detail with their client, and the potential cost of the

litigation through trial.

• Once an impasse is imminent, invite the parties to propose a bracket or

consider a Mediator’s Proposal. (See MEAC Opinion 2010-006 for proper

wording of a Mediator’s Proposal) Only reveal each side’s response to a

Mediator’s Proposal if the proposal is accepted by all parties. The

Mediator’s Proposal may also be effective after an impasse.

• No information obtained during a caucus may be revealed by the mediator

without the consent of the disclosing party. (See Rule 10.360(b))

• At the end of each caucus, reiterate 1) the offer and any message to be

delivered and 2) the information which may and may not be disclosed.

• Consider using a red pen or other distinctive means to distinguish

information in your notes which may not to be disclosed to the other side.

E. CROSS CAUCUS

• A cross caucus is a private caucus exclusively between the mediator and

the attorneys or between the mediator and the parties. The possibility of

a cross caucus should be introduced during the mediator’s opening and

utilized only with the parties’ permission.

• Do not overuse cross caucuses as this may alienate the excluded

individuals. Cross caucuses are typically used towards the end of a

mediation to negotiate a small number of issues or to negotiate the

settlement agreement.

F. AFTER A SETTLEMENT IN PRINCIPLE OR AN IMPASSE IS REACHED

1. After a Settlement in Principle is Reached

• Consider maintaining templates of settlement agreements for common

cases.

• Encourage counsel and the parties to execute the final settlement

agreement before leaving the mediation. As transactional lawyers know:

“Time kills all deals.”

• Establish clear conditions for the dismissal of the suit.

• Identify who is responsible for paying the mediation fee.

• Virtual Mediations: Be proficient with screensharing for real-time editing

of the settlement agreement and consider having technology available,

such as DocuSign or Adobe, to execute the agreement electronically.

2. After an Impasse

• Discuss the option of continuing the mediation, rather than declaring an

impasse, when that appears to be beneficial.

• Consider asking the parties if they would entertain a Mediator’s Proposal.

• Follow up with the parties periodically at no charge to see if a settlement

dialogue can be rekindled. If settlement talks re-commence, offer to

mediate again.

See Attachment 5: “Settlement Agreement and Stipulation of Parties (Presuit Mediation)” and Attachment 6:

“Settlement Agreement and Stipulation of Parties (Claim in Litigation).

G. POST MEDIATION

• Promptly file the Mediator’s Report

with the court and send the parties a

copy as well as the final billing statement and a signed W-9.

• If there is an impasse, follow up with counsel to attempt to re-initiate

settlement discussions.

• Obtain a fully executed copy of the Settlement Agreement even if it is

signed after the day of the mediation.

II. MEDIATION BEST PRACTICES FOR THE TRIAL LAWYER

A. PRE-MEDIATION

1. Scheduling

• Confirm the parties’ selection of the mediator.

Identify who will be filing

the Notice of Mediation.

• Promptly respond to emails and phone calls and communicate with

attorneys, legal staff and parties in a courteous and professional manner.

• Promptly advise the mediator where the case is pending, and provide the

case number, so the mediator can locate the court file.

• File the Certification of Authority required by Fla.R.Civ.Pro. 1.720(e),

identifying the party representative(s) and confirming that they have

adequate authority. Serve the Certification on the parties and the

mediator.

• Reserve sufficient time for the mediation. If uncertain about the amount

of time needed, confer with opposing counsel and the mediator.

• Virtual Mediation: Provide name, positions and email addresses of all

individuals who will need invitations from the mediator.

2. Preparing for the Mediation

• Approach the mediation as a transactional lawyer approaches a potential

transaction. Be diplomatic and cooperative at all times. Ascertain the

See Attachment 7: “Mediator’s Results Report” (State) and Attachment 8: Mediation Report (Federal)

See Attachment 9: “Mediation Stipulation and Agreement.”

See Attachment 1: “Notice of Mediation – In Person” and Attachment 2: “Notice of Virtual Mediation”

needs of the parties, beyond the money, and help the parties find mutually

beneficial solutions that fulfill those needs.

• Periodically review the rules and statutes governing the mediation process

to ensure that your expectations and strategies for mediation are

compliant.

• Prepare for the mediation by identifying and understanding the factual and

legal issues in dispute and the applicable law. Consider the emotional state

of your client and the opposing party how that might impact their

willingness to settle.

• Prepare a case evaluation and cost of litigation analysis. Defense counsel

should share those documents with the client and adjuster, where

applicable, before authority is determined.

• In personal injury cases, research bills and liens prior to mediation. Share

this information with the mediator and the other side in advance.

• Confirm that the real decision maker will be involved in the mediation.

• Prepare a draft settlement agreement prior to the mediation with blanks

for key terms.

• Meet with the client to prepare him or her for the mediation process and

explain the mediator’s role, if necessary. Set reasonable expectations and

remind the client that compromise will be necessary. Prepare the client to

keep an open mind and conduct themselves to engender trust and

cooperation from the other side.

• During the client meeting, gather information about the client’s current

willingness to settle, the personalities involved on both sides, impediments

to settlement, Best Alternative to a Negotiated Agreement (BATNA), Worst

Alternative to a Negotiated Agreement (WATNA) and Probable Alternative

to a Negotiated Agreement (PATNA) for all parties as well as creative

settlement options.

• Ask your client what a good settlement looks like, what terms are essential

(modify draft agreement if necessary), what circumstances may make

settlement more desirable and whether there are any “deal breakers”

which the other side may demand. Where applicable, ask the client if there

is an ongoing relationship with the other side that may impact settlement.

• Review the draft settlement agreement with the client. Discuss the best

and worst-case scenarios for trial and settlement, including costs.

Consider sending the draft settlement agreement to opposing counsel for

suggestions in advance of the mediation.

• Educate the client about the importance of allowing the other side to

speak, without interruption, and to avoid argument, which is

counterproductive to reaching a settlement. Advise the client that

disagreements will be dealt with diplomatically with the mediator’s

assistance.

• If the party representative is articulate and sympathetic, consider allowing

him or her to speak, particularly where there is a relationship with the

other side.

• If the client will speak during the mediation, practice with the client.

• If you don’t have critical information necessary for meaningful settlement

discussions, then request the information from opposing counsel before

the mediation. The mediator may assist with making this request.

• Prepare a confidential mediation summary that briefly describes the case

status, factual and legal issues in dispute, prior offers, impediments to

settlement and a description of damages.

• If a legal issue is impeding settlement, attach case law or other authority

to the mediation summary with the relevant sections highlighted.

• A less expensive alternative to a mediation summary is to send the

mediator relevant pleadings, documents and a summary of prior offers.

Condense what you send the mediator to the essential matters in dispute.

• Prior to the mediation, call the mediator to discuss the case, the parties,

the issues, prior negotiations (demands, offers, proposals for settlement,

etc.) and obstacles to settlement. Advise the mediator if there are

emotional obstacles to settlement or hostility between the parties which

must be dealt with before the parties may resolve the dispute. Inform the

mediator if you need the mediator’s assistance to help your client, or the

opposing party, understand an issue.

• Attempt to resolve dispositive motions prior to mediation.

• If the value of the claim is at issue, provide the mediator verdicts from

similar cases.

• Virtual Mediations: Confirm that each individual attending the mediation

has acceptable equipment and knows how to use the technology. Confirm

the security settings to be used when speaking to the mediator, such as

enabling the waiting room and disabling the recording function.

B. BEST PRACTICES THAT APPLY TO THE ENTIRE MEDIATION

• Ethical Canon of Self-Determination: Mediation is a process to facilitate

consensual agreement between parties engaged in a dispute to assist

them in voluntarily resolving their dispute. A parties’ right to self-

determination (a free and informed choice to agree or not agree) must be

preserved at all times. (See Rule 10.310 and Committee Notes).

• “The best general is the one who never fights.” -Sun Tzu, The Art of War.

Resist the urge to argue during the mediation and instead build trust and

cooperation from the other side by truly listening to their position. Try to

discern the other side’s needs and create proposals that address those

needs. Focus on areas of mutual interest and agreement rather than

points of conflict. Consider allowing the mediator to raise contentious

issues in private caucus. Every action you make should demonstrate that

you and your client are at the mediation to cooperate with the other side

to pursue a mutually beneficial resolution.

• Mediation is an “informal and non-adversarial process intended to help

disputing parties reach a mutually acceptable agreement.” (See Rule

10.210). Since the goal of mediation is to reach an agreement with the

opposing party, it is more like a transactional law event than an adversarial

proceeding. Mediation should therefore be approached the same way that

transactional lawyers achieve agreement between parties with competing

interests: by focusing on areas of mutual benefit, not conflict, and making

proposals that satisfy the needs of both parties.

• Use Mediation Advocacy instead of Trial Advocacy during the mediation.

Mediation Advocacy is the skill of presenting a client’s position, needs and

interests in a non-adversarial manner to persuade the other side to enter

into an agreement with you by using active listening, empathy and

problem solving instead of argument.

• The trial lawyer should avoid the temptation of “beating his chest” for the

client. This may jeopardize the mediation by alienating the other side and

frustrating the process. At the least, posturing for the client will make the

mediation unnecessarily expensive and time consuming.

• Be certain of the accuracy of each statement made during the entire

mediation process. (See Rule 4-4.1 of the Florida Rules of Professional

Conduct and Rule 10.310(c)).

• Patience is one of the most important traits for mediation success. Be

patient when listening to the other side and responding to offers.

• Treat every person during the mediation with civility and professionalism.

C. JOINT CAUCUS AND OPENING STATEMENTS OF COUNSEL

• The goal of opening statement is to earn the trust and respect of the other

side and promote cooperation by demonstrating empathy and a sincere

interest in resolving the issues while avoiding inflammatory and offensive

See Attachment 10: Recommended Reading List.

statements. Remember that “people will forget what you said, but people

will never forget how you made them feel.” -Maya Angelou

• Begin the Opening Statement with a story that explains the critical events

from your client’s point of view and introduces a compelling theme.

Conclude the Opening Statement by committing to work with the other

side and the mediator to explore options to resolve the dispute.

• Utilize photographs, videos or key documents in your presentation. Utilize

screen share to display these items during virtual mediation.

• Consider allowing the mediator to raise contentious or sensitive topics in

private caucus to avoid creating conflict or embarrassing the other side.

D. CAUCUSES

• Engage the party representative in the caucus discussions and encourage

them to suggest potential solutions.

• Parties often mirror the amount of movement made by the opposing

party’s offers. Consider encouraging your client to make offers that

demonstrate a sincere desire to resolve the dispute as this will create trust

and credibility with the other party and generate greater movement and

settlement momentum.

• When appropriate, send an explanation with your offer that provides a

rational, objective basis for the settlement proposal.

• Consider requesting a joint discussion with the other party or parties to

work through difficult settlement issues and impediments.

• To avoid a potential impasse, go over the next steps of the litigation in

detail with your client, and the potential cost of the litigation through trial.

• If an impasse is imminent, consider proposing a bracket or asking the

mediator to make a Mediator’s Proposal. The Mediator’s Proposal may

also be effective after an impasse is reached.

• If raising a certain type of proposal will compromise a party’s negotiating

position, consider asking the mediator to raise the proposal.

• At the end of each caucus, have the mediator repeat the offer and any

message he will deliver as well as any information which will not be

disclosed.

E. CROSS CAUCUS

• A cross caucus is a private caucus exclusively between the mediator and

the attorneys or between the mediator and the client representatives. The

possibility of a cross caucus should be introduced during the mediator’s

opening and utilized only with the parties’ permission.

• Use the cross caucus sparingly as excessive use may alienate the

individuals excluded from the discussions.

• The cross caucus may be effectively used to resolve a small number of

issues by a meeting between counsel or between party representatives. It

is also useful to negotiate the terms of the settlement agreement. A joint

caucus may alternatively be used where all parties and counsel are

present.

F. AFTER A SETTLEMENT AGREEMENT IS REACHED OR AN IMPASSE IS DECLARED.

1. After a Settlement has been reached in principle

• To avoid buyer’s remorse, urge the parties to execute the final settlement

agreement and release(s) before leaving the mediation. As transactional

lawyers know: “Time kills all deals.”

• Establish clear conditions for the dismissal of the suit in the agreement and

provide that the court will retain jurisdiction to enforce the Settlement

Agreement.

• Ensure that the client is aware of the amount of their net recovery.

• Virtual Mediation: Have technology, such as DocuSign or Adobe, available

to allow the parties to sign the agreement electronically. Confirm with

counsel and the parties that they understand how to use this technology.

2. After an Impasse

• Consider continuing the mediation to a specific date, rather than declaring

an impasse, if the impasse may be resolved by additional discovery,

nonbinding arbitration or a ruling on an issue in dispute.

• Propose that the parties stipulate to non-binding arbitration if this may

help clarify an issue or issues causing the impasse.

• Ask the mediator to periodically follow up with the parties to see if a

settlement dialogue can be rekindled. If settlement talks re-commence,

propose mediating again.

G. POST MEDIATION

• Consider serving a Proposal for Settlement with your last offer.

• Consider contacting the other party to discuss if further talks would be

fruitful or enlist the mediator’s assistance to do so.

• Set the case for trial.

ATTACHMENT “1”

NOTICE OF MEDIATION

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR _______________ COUNTY, FLORIDA

CIVIL DIVISION

Plaintiff

vs.

Case No:

Defendants,

_______________________________/

Division:

NOTICE OF MEDIATION

PLEASE BE ADVISED that this case has been scheduled for mediation to be held before

___________, Esquire on:

DATE & TIME: ______, __________, 20__, at ___ a.m./p.m.

LOCATION: _____________________________________

_____________________________________

Respectfully Submitted,

________________________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed

electronically with the Clerk of Court utilizing Florida Court’s E-Filing Portal system and in

compliance with Florida Rules of Judicial Administration 2.515 and 2.516(3) on ____, 20__, which

will automatically transmit an electronic copy to:

___________________________________

________________________

Attorney

ATTACHMENT “2”

NOTICE OF VIRTUAL MEDIATION

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR _______________ COUNTY, FLORIDA

CIVIL DIVISION

Plaintiff

vs.

Case No:

Defendants,

_______________________________/

Division:

NOTICE OF VIRTUAL MEDIATION

PLEASE BE ADVISED that this case has been scheduled for mediation to be held before

___________, Esquire on:

DATE & TIME: ______, __________, 20__, at ___ a.m./p.m.

VIRTUAL MEDIATION INFORMATION: Meeting link to be provided.

Respectfully Submitted,

_____________________________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed

electronically with the Clerk of Court utilizing Florida Court’s E-Filing Portal system and in

compliance with Florida Rules of Judicial Administration 2.515 and 2.516(3) on __________,

20__, which will automatically transmit an electronic copy to:

_____________________

________________________

Attorney

ATTACHMENT “3”

MEDIATION CONFIRMATION LETTER

CASE NUMBER:

Attached please find the Mediation Engagement, Confirmation and Disclosure Agreement

setting forth the terms and conditions of the above-referenced mediation as well as the policies

of this office.

Please also refer to our website, ___________________________, for additional

information on our mediation practice, office procedures, logistics, and in particular, questions

about our location and parking. The website includes an Intro to Mediation which can be shared

with clients unfamiliar with the mediation process.

The mediation is scheduled for four (4) hours unless otherwise agreed to and confirmed

in writing.

If scheduled at our facility, our address is ___________________________. Our office is

located in ______________________________________________.

Please forward any mediation summary or any other records or reports that may be

relevant to the issues of this case and helpful in my preparation for this mediation.

Thank you again for selecting me as your Mediator, and I look forward to working with you

to resolve the issues between the parties.

Very truly yours,

ATTACHMENT “4”

MEDIATION ENGAGEMENT, CONFIRMATION AND DISCLOSURE AGREEMENT

CASE NUMBER:

This Agreement will confirm that a mediation conference in the above case has

been scheduled for _______________________.

The conference will be held at _____________________, _______________,

_____, Florida ________. The Mediator will be ___________________,

Esquire, Certified Florida Circuit Civil Mediator and Federal Court Mediator. The

engagement for mediation services is with the understanding that this Agreement

will control and govern the terms and conditions of the Mediation.

SCHEDULE

Mediations are reserved/scheduled in 4 hours slots for morning or afternoon sessions. If

you wish to reserve more than 4 hours or all day please let us know, and confirm it in any

Notice or other written confirmation of the mediation. Otherwise, we assume only 4 hours

is reserved. This will help avoid scheduling conflicts.

FEES

Mediation time will be charged at the rate of $_____ per hour ($____ per hour, per side for two

party mediations). For “multiparty” mediations with three (3) sides, the rate is $____ per hour, per

side, and mediations with four (4) or more sides will be billed at the rate of $____ per hour, to be

divided evenly between the sides. “Sides” refers to parties with opposing positions in the

mediation, i.e. co-defendants, represented by the same counsel, whose positions are not adverse

constitute one “side.” The term “Parties” herein refers to the named parties to the litigation as

well as any interested parties voluntarily participating in the mediation process. The mediator is

entitled to compensation for all time spent on the case including but not limited to preparation

time, telephone conferences, attendance at the mediation conference, follow-up, collection efforts

(including but not limited to attorney fees and costs), preparation of the parties’ agreement and

the Mediation Report to the Court. Travel time is billed at one half (1/2) of the hourly rate.

Parties agree to waive any part of a Court order inconsistent with the afore-mentioned hourly

rates. Please note that these fees include reasonable and necessary expenses incurred by the

mediator such as clerical, local telephone, local fax charges, postage costs, etc., but we reserve

the right to charge for extraordinary expenses.

There is a three (3) hour minimum charge for all mediations, except if a full eight-hour day is

reserved which will require a six (6) hour minimum charge, unless the mediator agrees to the

contrary in writing. The participating sides shall divide mediation fees equally, unless the parties

agree to a different apportionment of costs in writing.

CANCELLATION POLICY

The mediator in this case has been engaged to conduct this mediation. As such, we are accepting

this engagement to the exclusion of scheduling other work for the day and the time which has

been reserved. Due to the difficulty of scheduling a new case when there is a cancellation, the

time and expenses already incurred in scheduling and preparing for the cancelled conference,

and the positive effect a scheduled conference can have in settlement negotiations, the following

policies have been adopted:

In the event this mediation is cancelled within 48 hours of the scheduled mediation conference,

there will be a three (3) hour minimum charge divided by all sides. Unless the parties in the case

agree on who should pay the cancellation fee, all parties, through their attorneys, if any, shall be

financially responsible for their share. All cancellations should communicate in writing, by email,

with the agreement of all parties and counsel, if any, noted.

PAYMENT

Law firms and lawyers – not their clients – will be billed and are responsible for the Mediation bill.

Payment is due within 10 days of the date of the bill and is not conditioned on settlement, receipt

of settlement funds or payment by a client. Past due bills will accrue interest at the highest legal

rate and will result in additional charges for time and fees spent on collection.

Pro se parties (those not represented by attorneys) must pre-pay a $500 deposit or bring a check

to the mediation.

APPLICABLE LAW, CONFIDENTIALITY & MEDIATOR IMMUNITY

Whether Mediation is pre-suit, Court ordered or voluntary, the Mediation Confidentiality and

Privilege Act (§§44.401, et seq. Fla. Stat.), Fla. R. Civ. P. 1.700, et seq and/or Federal Rules of

Civil Procedure, (and local rules of Court in the District which the case is venued) shall apply. All

Mediation Communications are confidential. Mediators are immune from liability, including all

forms of negligence, arising from performance of Mediation work. Mediators are immune from

providing written, deposition or trial testimony relating in any way to any Mediation conducted by

them.

ATTENDANCE & SETTLEMENT AUTHORITY

Mediators have no role in or responsibility for compliance with, enforcement of, or sanctions

associated with Fla. R. Civ. P. 1.720, pertaining to Mediation appearance, attendance or

settlement authority of any party, party representative, counsel of record, or insurance carrier

representative.

ACCEPTANCE OF TERMS

IF YOU OBJECT TO ANY TERMS OF THIS LETTER, CONTACT ME IN WRITING, BY EMAIL,

WITHIN 5 BUSINESS DAYS OF THE EMAIL CONVEYING THE LETTER. OTHERWISE, ALL

TERMS SHALL BE DEEMED ACCEPTED BY THE RECIPIENTS OF THIS LETTER, THEIR

CLIENTS AND ANYONE ATTENDING MEDIATION WITH THEM. COMMENCEMENT OF

MEDIATION AND ENGAGEMENT OF THE MEDIATOR ARE WITH THE EXPRESS

UNDERSTANDING AND AGREEMENT OF THESE TERMS.

Thank you again for engaging my mediation services. I look forward to working with you. Please

let me know if you have any questions or need assistance.

ATTACHMENT “5”

SETTLEMENT AGREEMENT AND STIPULATION

(PRESUIT MEDIATION)

RESPONDENT/INSURED: ____________

CLAIMANT:________________________

CLAIM NUMBER: ___________________

DATE OF LOSS: ____________________

SETTLEMENT AGREEMENT AND STIPULATION OF PARTIES

Pursuant to the Mediation Conference held on the _________ day of ___________, 20__, the

parties have agreed to the following:

1. ___________________________________________________________ shall pay to

_______________________________________________ the sum of $______ to be distributed

as follows:

2. Said Settlement sums to be paid within ____ days from the date of this stipulation.

3. The Claimant(s)/Releasor(s) shall execute and deliver General Releases, releasing any

and all claims that they have or may have in the future against Releasees, arising out of the

facts involved in the present dispute of the parties, namely:

____________________________________________________________________________

_____________________________________________.

4. Claimant(s) shall execute and deliver to Respondent(s)’ undersigned attorney

general releases and indemnification agreements which hold Respondent(s) and

his/her/its insurance company(ies) harmless from any third-party liens or claims for which

Claimant(s) is legally liable. Claimant(s) shall be responsible for satisfying any and all

liens which might apply to these settlement proceeds.

5. Each party shall pay their own costs and fees. Mediation fees shall be paid equally

by each side and are payable within ten (10) business days of the mediation.

6. The parties hereby stipulate that the mediation shall be governed as if it were court

ordered and pursuant to Fla. Stat. §44.102 et seq, and F.R.C.P. 1.700 et seq as well as

any administrative orders in effect from the date the mediator was selected. The parties

and counsel also hereby agree that all matters raised in mediation shall remain privileged

and confidential unless waived by all parties and the mediator or as otherwise required

by law. Also, the parties and counsel further stipulate that the mediator shall be immune

from testimony, deposition and liability, including all forms of negligence, whether a Court

ordered or voluntary mediation.

THIS STIPULATION BECOMES BINDING UPON ITS EXECUTION BY THE PARTIES AND

THEIR COUNSEL.

_____________________________ ________________________________

Counsel for Claimant: ___________ Counsel for Respondent: ___________

Date: ________________________ Date: ___________________________

_______________________________ ________________________________

_______________________, Claimant _____________________, Respondent

Date: ___________________________ Date:____________________________

ATTACHMENT “6”

SETTLEMENT AGREEMENT AND STIPULATION OF PARTIES

(CLAIM IN LITIGATION)

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT IN AND FOR

_______________ COUNTY, FLORIDA

CIVIL DIVISION

Plaintiff

vs.

Case No:

Defendants,

_______________________________/

Division:

SETTLEMENT AGREEMENT AND STIPULATION OF PARTIES

Pursuant to the Mediation Conference held on the _____ day of _____________, ______,

the parties have agreed to abide by the following:

1. The Defendant(s) shall pay to the Plaintiff(s) the sum of $___________, in full

settlement of the Plaintiff(s) cause(s) of action constituting this litigation.

____________________________________________________________________________

The Defendant(s) shall pay said sum through the offices of Plaintiff’s counsel of record within

____ days from the date of this stipulation.

2. The Plaintiff(s) shall voluntarily dismiss this litigation with prejudice and execute

and deliver to the Defendant(s) and his/her/its/their insurance company through the offices of the

Defendant’s counsel of record, General Release(s) and Indemnification Agreement(s) holding the

Defendant(s) and his/her/its/their insurance company(ies) harmless from any third party liens or

claims for which the Plaintiff(s) was/were able to legally collect and for which the Plaintiff(s) is/are

legally liable only. Plaintiff(s) shall be responsible for satisfying and all liens which might apply to

these settlement proceeds.

3. Each side shall pay their own costs and fees. Mediation costs will be shared

equally between the sides and are payable within ten (10) business days of the mediation.

4. This settlement is contingent upon the clearing of funds and receipt by Defendant’s

counsel of record of the dismissals, releases and indemnifications required herein.

5. The parties hereby stipulate the mediation shall be governed as if it were court

ordered and pursuant to Fla. Stat. §44.102 et seq, and F.R.C.P. 1.700 et seq as well as any

administrative orders in effect from the date the mediator was selected. In Federal Court cases,

the Local Rules 9.01 – 9.07 of the United States District Court for the Middle District of Florida

shall apply. The parties and counsel also hereby agree that all matters raised in mediation shall

remain privileged and confidential unless waived by all parties and the mediator or as otherwise

required by law. Also, the parties and counsel further stipulate the mediator shall be immune from

testimony, deposition and liability, including all forms of negligence, whether a Court ordered or

voluntary mediation. (Note: Amend citation to federal local rules based on applicable

jurisdiction).

THIS AGREEMENT SHALL BE FILED WHEN REQUIRED BY LAW OR WITH THE PARTIES’

CONSENT. THIS STIPULATION BECOMES BINDING UPON ITS EXECUTION BY THE

PARTIES AND THEIR COUNSEL. THIS STIPULATION, IF FILED, SHALL BE ENTERED AS

A JUDGMENT OF THE COURT, OR THE COURT SHALL RETAIN JURISDICTION TO ENTER

FINAL JUDGMENT OR ENTER AN ORDER DISMISSING THE CAUSE.

________________________________ ___________________________________

Counsel for Plaintiff: _______________ Counsel for Defendant: ____________

Date: ___________________________ Date: ___________________________

________________________________ ________________________________

_________________, Plaintiff ___________________, Defendant

Date: __________________________ Date: ___________________________

ATTACHMENT “7”

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR _______________ COUNTY, FLORIDA

CIVIL DIVISION

Plaintiff

vs.

Case No:

Defendants,

_______________________________/

Division:

MEDIATION RESULTS REPORT

A mediation conference was conducted on the ___ day of ____, 20__.

( ) PLAINTIFF/PETITIONER APPEARED, (_____________)

( ) DEFENDANT/RESPONDENT APPEARED (_____________)

PLAINTIFF’S ATTORNEY(S) FIRM: DEFENDANT’S ATTORNEY(S) FIRM:

MEDIATOR: _______________, Certified Circuit Civil Mediator

RESULTS: () FULL SETTLEMENT

() PARTIAL SETTLEMENT

() NO SETTLEMENT

() CONTINUED (DATE) ____________________

LENGTH OF MEDIATION CONFERENCE: ____ hours

Respectfully submitted via EFile to the Clerk of the Court, with a copy to counsel for the parties

(via email only) this ___ day of ______ 20__.

____________________________

_________________, MEDIATOR

Florida Mediator Number

Address

Phone Number

ATTACHMENT “8”

MEDIATION REPORT (FEDERAL)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

_____________________DIVISION

Plaintiff(s),

-v- Case No.

Defendant(s)

MEDIATION REPORT

In accordance with the Court’s mediation order(s), a mediation conference was held on

____________, 20___, and the results of that conference are indicated below:

(a) The following individuals, parties, corporate representatives, and/or claims

professionals attended and participated in the mediation conference, and each party

possessed the requisite authority:

 All individual parties and their respective trial counsel.

 Designated corporate representatives.

 Required claims professionals.

(b) The following individuals, parties, corporate representatives, and/or claims

professionals failed to appear and/or participate as ordered:

MEDIATION REPORT Page 1

(Attachment to Mediation Order) (Rev. 7/04)

 The case has been completely settled. In accordance with Local Rule 9.06(b), lead

counsel will promptly notify the Court of settlement in accordance with Local Rule

3.08 by the filing of a settlement agreement signed by the parties and the mediator

within ten (10) days of the mediation conference.

 The case has been partially resolved and lead counsel has been instructed to file

a joint stipulation regarding those claims which have been resolved within ten (10)

days. The following issues remain for this Court to resolve:

________________________________________________________________

 The conference was continued with the consent of all parties and counsel. The

mediation conference will be held on a date certain not later than ten (10) days

prior to the scheduled trial date. Any continuance beyond that time must be

approved by the presiding Judge. Mediation Reports will be filed after additional

conferences are complete.

 The parties have reached an impasse.

Done this ____________day of ____________________, 20 ____, in ___________, Florida.

_____________________________________________

Signature of Mediator

_____________________________________________

Name of Mediator

_____________________________________________

Mailing Address

____________________ _____________________

City State

__________________ __________________

Zip State Telephone Number

MEDIATION REPORT Page 2

(Attachment to Mediation Order) (Rev. 7/04)

ATTACHMENT “9”

MEDIATION STIPULATION AND AGREEMENT

IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT

IN AND FOR _________ COUNTY, STATE OF FLORIDA

CIVIL DIVISION

CASE NO.:

DIVISION:

Plaintiff,

vs.

Defendant.

____________________________/

MEDIATION STIPULATION AND AGREEMENT

The parties below, by and through its undersigned counsel, if any, hereby stipulate that all

parties in this case agree to using the following mediator pursuant to the terms, conditions and

policies set forth in the Mediation Engagement, Confirmation and Disclosure Agreement:

Name: __________________________________, Certified Circuit Court & Federal Mediator

Address: ________________________________________________________________

Phone: ____________________________

Fax: ____________________________

The parties and counsel also hereby stipulate that all matters raised in mediation shall remain

privileged and confidential unless waived by all parties and the mediator or as otherwise provided

by law. Also, the parties and counsel further stipulate the mediator shall be immune from

testimony, deposition and liability, including all forms of negligence, whether a Court ordered or

voluntary mediation.

Dated this _______ day of __________________, 202_.

_____________________________ ___________________________

______________________, Esquire ____________________, Esquire

Counsel for Plaintiff Counsel for Defendant

ATTACHMENT “10”

THE MEDIATION PROCESS EXPLAINED

The mediation process has been developed to allow parties in conflict to resolve their differences

with a minimum of expense and in a manner that is frequently more efficient and far less

expensive than a trial in a court of law. In mediation, a neutral third person, referred to as a

mediator, encourages and facilitates the resolution of the dispute in an informal, non-adversarial

manner.

The mediator is not a judge and has no power to command a settlement or make a decision on a

winner or loser. His duty is to allow each party to present their case and then, through the use of

mediation skills, allow the parties to reach a satisfactory settlement. The parties decide, with their

counsel’s advice whether a settlement is in their best interest. Mediation is an effective means of

allowing the parties to control their destinies without relinquishing these decisions to a judge or

jury. A mediation settlement provides the parties to a dispute with (1) a guaranteed result, (2) no

risk of an adverse decision at a trial, and (3) closure of the matter.

If all parties to the dispute agree to a settlement, this agreement will be reduced to a written

agreement, signed by all parties, their counsel and the mediator. This is a binding contract. If

the parties cannot or do not agree to the terms of a settlement, they may either agree to a

postponement or request the mediator to declare the mediation at impasse, meaning simply that

the parties cannot agree to resolving the dispute through mediation.

COMMON QUESTIONS AND ANSWERS ABOUT MEDIATION

WHAT HAPPENS WHEN WE GET THERE? The parties will meet at an agreed upon location at

which time the mediator will explain the basics of the procedure to all present. Each counsel for

the parties has the right to present an opening statement about his/her client’s position. A party

also, should he or she wish, may address issues at this time. After opening statements, they may

continue to meet as a group or, if more effective, they will break into separate groups referred to

as “caucuses.” The mediator will meet with each group privately and then may withdraw and

meet with another caucus group. They may at some time rejoin as a group if beneficial to the

mediation process. If the parties agree to a settlement, or if the mediation does not result in a

settlement at the end of the mediation, they will meet as a group to sign the settlement agreement

or to adjourn because an impasse was reached.

CAN I BE FORCED TO SETTLE MY CLAIM? Absolutely not. This is a voluntary process based

upon your conclusion, with your counsel’s advice, that settlement at mediation is in your best

interest.

WHAT HAPPENS IF WE DO NOT SETTLE? The case continues on through the court system

and a decision resolving the dispute may then be made by a judge or jury. You have lost none of

your legal rights, but mediation does allow you to maintain control of your destiny. You will have

limited control of the decision once it is submitted to a judge or jury.

IS EACH PARTY AUTHORIZED TO SETTLE? Prior to the commencement of the mediation

each party, through counsel, represents that each has final decision-making authority to settle.

CAN ANYTHING I SAY BE HELD AGAINST ME IF WE DO NOT SETTLE? No, the basic

premise of mediation is that it is a confidential, safe environment where the parties can explore

the possibility of settlement. Each party and counsel will agree to abide by these rules of strict

confidentiality and there are penalties for violation.

WHAT RULES GOVERN THE MEDIATOR? There are many rules which govern the mediator

but the principal rule is that the mediator must remain neutral to all parties. You may tell the

mediator confidential information that will never be revealed to the other party or parties unless

you specifically authorize such disclosure. At times it is invaluable that information be disclosed

to the mediator, and with the concurrence of your counsel, be revealed to the other party in order

to convince them that settlement is in their best interests. As stated before, nothing said within

the context of a mediation is admissible in a subsequent court proceeding. All parties are bound

by this rule of confidentiality. Further, the mediator is required to determine if there is a potential

conflict of interest prior to the mediation. Under certain circumstances a mediator is prohibited

from doing a mediation because the situation creates the appearance of a lack of impartiality.

IS A MEDIATION ADVERSARIAL? No. In order for a mediation to be successful the parties

must have a collaborative attitude. They have a problem, and the problem is that there is a dispute

that is on track to an expensive winner-take-all process. A successful mediation lets the parties

use the power they have to craft a resolution that is mutually acceptable.

At a mediation, the parties must realize that neither side will convince the opponent that they are

right and the opponent is wrong. The attorneys must address the issues, the facts and the

problems in a manner that promotes positive negotiation, and be hard on the problem but easy

on the people.

WHAT IS THE ROLE OF THE ATTORNEY? The attorney should prepare as if he is going to

trial. His goal is to present to the decision-maker on the other side the facts in favor of his case

such that the opponent recognizes the risk of trying the case and agrees to work toward a

settlement.

ATTACHMENT “11”