Should Arbitration Proceed Mediation in a Hybrid Mediation / Arbitration?
Florida Supreme Court Certified Circuit Civil Mediator
Florida Supreme Court Qualified Arbitrator
One of the great strengths of mediation is confidentiality. As we tell the participants at the outset, “what is said in mediation stays in mediation.” We often remind them of the consequences of disclosing what was said. But this
cooperation in the organization.
strength is also mediation’s Achilles heel. Parties are free to spin facts and puff knowing that nothing they say can be repeated in a courtroom.
As a result, the decision makers often leave an impassed mediation with no better understanding of their case and that of their opponent than they had at the outset, still not knowing what will and won’t be presented to the trier of fact.
By contrast, in our non-binding arbitrations counsel for the parties proffer the testimony that they hope to present at trial. Additionally, the arbitrator can and does ask questions of the parties in the presence of both sides to obtain a fuller understanding of the strengths and weaknesses of each litigant’s case. As a result, at the conclusion of the arbitration the decision makers on both sides have a better sense of their opponent’s case and hopefully a better sense of how the arbitrator will rule.
These are non-binding arbitrations. Either party may request a trial de novo, in which case the arbitrator’s ruling is only significant if at trial there is a verdict that differs from the arbitrator’s award by at least 25%. But should that occur, it may result in the taxing of fees and costs being assessed against the party who sought trial de novo.
As the parties have a better understanding of the case and are aware that there is some risk if they allow the arbitrator to rule, I have found that if after a short break, we reconvene as a mediation the parties quickly settle their case.
That is why I believe it is better to arbitrate first in a mediation/arbitration hybrid.