Kenneth B. Schwartz - Florida Attorney - Civil Trials and Appeals
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What Is Mediation

The mediation process is a loosely structured, interactive, confidential process where a neutral third party (i.e., the mediator) assists disputing parties in resolving conflict. The mediator is neither a judge nor an advocate for any party or any particular position a party might take. The mediator does not "decide" any case, "award" any damages, or "rule" on any issue for the parties. Indeed, mediators have no such authority. Instead, the mediator's job is to guide the parties toward an agreement that resolves either the whole case or the pending issues in dispute. A good mediator does this by listening to the parties' respective versions of the facts and the law, determining each side's goals and objectives in the litigation, and helping each side see their strengths and weaknesses. Through confidential conversations with both sides, the mediator looks for common ground and flexibility. An old saying about mediation is that, "A good mediation conference is one where both sides leave with an agreement that makes them both equally unhappy." Although there's wisdom in that saying, I don't think it paints the complete picture.

 

First, in order to reach an agreement, yes, both sides usually need to concede something, and those concessions are often greater than the parties planned to make before the conference started. But, it's also important to remember that mediation is not trial, and quite often one or both parties don't yet have all the information or evidence they need to make the best possible decisions. So, a good mediation conference can also be one where, although no disputes were resolved (and no concessions made), both sides leave the conference with a clearer understanding of the facts and/or the realization that there are fewer things in dispute than they thought before the day started. That education/clarification often paves the way for a settlement agreement in the near future.

 

Second, even if an agreement is reached and both sides initially seem unhappy about how much they conceded to make the agreement happen, both sides will usually realize at some point that having ended the conference with an agreement was a very good long-term decision. Litigation is usually a nasty, time-consuming, and expensive process. It can ruin relationships, cause emotional distress, and bankrupt businesses. Reaching an agreement at mediation, however, is cost-effective, and it brings about closure. A good mediator will help both sides see the benefit of reaching such an agreement under the particular facts of that case, and (s)he will help both sides leave having conceded as little as possible to reach it.

Mediation in Florida Workers' Compensation Cases

In Florida's workers' compensation system, mediation is mandatory. Each time the claimant files a Petition for Benefits (PFB), the claims in the PFB must be mediated before they can be brought before a Judge of Compensation Claims (JCC). The state employes mediators in each district. The parties can, however, hire "private" mediators (like me), and ask the JCC to substitute the state mediation for a private one.

 

As for what would be the subject of the mediation, say, for example, a single PFB is filed for authorization of a prescription medication, for authorization of an MRI scan, and for payment of temporary partial disability (TPD) benefits. The OJCC clerk will automatically order the parties to mediate these issues. If the carrier authorizes the medication before the conference takes place, the conference will then proceed on only the two remaining issues. If, at mediation, the parties reach an agreement on only the MRI, the mediator will then issue a report indicating that the medication issue was "resolved prior," the MRI has now been resolved, and TPD benefits remain in dispute and will need to be resolved by the JCC.

 

So, why would you want to "go private" instead of state mediation? The main reason is time. State mediation conferences are limited, often to only 30 minutes; whereas, private mediation conferences can last as long as the parties need to work through the issues. If the issues are novel or complex, or they are just hotly contested, mediators often need several hours to find out whether common ground between the parties can be reached and, if so, to work out the details of the agreement. Some attorneys (like me) are very particular about the language in the mediation report, because the agreement is a contract, and that takes additional time to work out. Another reason to go private is that the parties get to choose their mediator. Many private mediators are either retired JCCs or highly experienced attorneys. Some (like me) continue to practice in the field. And some (like me) are Board Certified by the Bar as experts in Florida workers' compensation law.

 

More Information

For more information about the process generally or to confirm dates Mr. Schwartz has available to serve as a mediator, please contact him at kschwartz@compmediation.com, with the date and time you wish to reserve and the case name and/or court case number.

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Kenneth B. Schwartz, P.A., serves clients primarily in Boca Raton, in Palm Beach County, as well as in Delray Beach, Boynton Beach, Lake Worth, West Palm Beach, Riviera Beach, Palm Beach Gardens, Greenacres, Atlantis, Manalapan, Hypoluxo, Jupiter, Tequesta, Juno Beach, Wellington, Highland Beach, Pahokee, Belle Glade, North Palm Beach, Lake Park, Palm Springs, Lake Clarke Shores, Royal Palm Beach. The firm also serves: Broward County, including Deerfield Beach, Ft. Lauderdale, Hollywood, Coconut Creek, Coral Springs, Pompano Beach, Lighthouse Point, Hillsboro Beach, Tamarac, Wilton Manors, Lauderhill, Sunrise, Plantation, Weston, Pembroke Pines, Miramar, and Hallandale Beach; Martin County, including Stuart, Hobe Sound, Indiantown, Jensen Beach, and Palm City; and St. Lucie County, including Port St. Lucie and Ft. Pierce. Depending on circumstances, Mr. Schwartz will accept cases from other areas in the state.

 

For more information, please fill out our Contact Form or telephone our office directly. 
 

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