Once the discovery is completed and the parties are ready to set a trial date, a motion to set the matter for trial is filed with the court. However before the case can be tried, most, if not all of Florida courts demand that the parties mediate the issues and try to settle the case.
It is up to the parties to select a mediator to hear the case. Mediators are usually attorneys who mediate cases on a regular basis. Once the mediator is selected, a hearing date is established and a location is agreed to.
The parties and the attorneys are present at the hearing. Also, a claims person from the defendant’s insurance company must be present with settlement authority to settle up to the policy limits of the defendants insurance coverage. That doesn’t mean he will pay up to the policy limits, he just must have the insurance company’s authority to do so if it is needed.
All of these people will be together in the conference room to start the proceedings. The lawyer for the injured plaintiff will go into a discussion of the issues and advise the defendant of exactly what the testimony and proofs at trial will be and why the plaintiff will prevail at trial and what the anticipated amount of the jury’s will probably be.
Next, the defense attorney will advise the plaintiff what he anticipates the testimony and proofs to be and the fact that the jury will give him less than what he wants, possibly nothing at all. The mediator will then ask the party’s themselves if they want to make a statement. If they do, they can go ahead and make a brief discussion of what they feel is important and why they will prevail if the case is tried.
Once, all of the statements are completed and all of the questions are discussed, the parties are placed in separate rooms and no longer will they all be together again for the rest of the mediation. The mediator will then meet with the parties separately to discuss the settlement offers and counter offers. The mediator has no authority to make a finding of the facts and award an amount of a settlement. He’s sole function is to try and help the parties to a resolution and settlement of the claim.
He will go back and forth to consult with the parties, advise each party what has been offered and carry counter offers back and forth until the case settles or the parties reach an impasse. If the case settles, then the parties sign documents agreeing to dismiss the case. The signed settlement agreement can’t then be revoked and is a contract that is binding on the parties. The court will be apprised of the settlement and the case will be dismissed. If the case is not settled at the mediation conference, then the court is advised of same and the matter can proceed to trial.
Keep in mind that just because the case doesn’t settle at mediation doesn’t mean it can’t be settled later. The case can be settled anytime including during trial.