Mediation: Referral to Private or Court Mediation

• If the parties do not set mediation on their own, the court enters an order for the parties to attend mediation. The parties can choose to use the court's mediator or a private mediator to help them reach a settlement. The parties share the cost of mediation. If one of the parties prefers coming to a settlement with a private mediator, but the other cannot afford her share of the fees, he can offer to pay for the entire session.
  
  

Settlement Agreement

• The mediator types up the settlement agreement (sometimes referred to as a mediation agreement). The parties and their counsel sign the agreement, which is then submitted to the court. Counsel is not required to attend mediation with its client, but usually does. In the event that counsel does not attend mediation, counsel has 10 days to review the agreement and submit an objection to the mediator, the unrepresented parties and the other party's counsel. If no objection is filed, the court assumes that counsel accepts the agreement and ratifies the agreement.
  
  

Discovery Process

• Rule 12.741(a) states that the mediation (settlement) process does not put off the discovery process. Discovery must be submitted even if mediation occurs before the end of the discovery process, though it is best to have completed the discovery process prior to attempting to come to a settlement so that the parties have a chance to mediate all issues rather than some of the issues.
  
  

Sanctions

• Since mediation is court-ordered, if a party does not appear for mediation and does not have good cause, the court can impose sanctions on the party that did not appear. Sanctions can include one or more of the following: mediator fees and attorneys' fees and costs. Attorneys' fees and costs including the fees to prepare for the mediation, travel expenses of the attorney, and the attorney's appearances at the mediation.
  
  

Appointment of Mediator

• Once the parties receive the order of referral to mediation, the parties have 10 days to agree on a mediator, if they are using a private mediator. If the parties cannot agree on a mediator, the petitioner must notify the court within 10 days (after the initial 10 days to choose a mediator) so that the court may appoint a mediator for the parties. When choosing mediators, the parties should always agree on two mediators, in the event that their first choice is not available.