PBCBA BAR BULLETINS pbcba_bulletin_january 2019 | Page 6
ADR C o r n e r
FREE MEDIATION
JOHN SOCHACKI
A judge has ordered mediation and a
mediator has been assigned to your case.
This mediator generally will have eight to
twelve years’ experience, mediated over
3,000 cases, and know some law and facts
of the dispute. Best of all – it’s free. Where
can you receive this free mediation? In
Palm Beach County Small Claims Court,
which has jurisdiction over cases involving
claims of $5,000 or less in damages
(excluding costs, interest, and attorneys’
fees). If you have never been to Small
Claims Court, then familiarize yourself with
Rule 7, Florida Small Claim Rules. A copy is
available for download from the Florida Bar
Association.
Upon arriving in court, the parties will
check in with the court’s deputy sheriff.
When called, the parties will either briefly
see the judge, who may ask to hear the facts
of the case and order the mediation, or the
parties may be directly sent to mediation,
then see the judge following the mediation’s
conclusion. Typically, the court has two to
four mediators who take cases in the order
that the parties have checked in.
Upon arriving to the mediation room, the
mediator will generally follow the standard
formal mediation process. The mediator
will give the opening statement, informing
the parties about the role of the mediator
and that everything discussed in mediation
is confidential, except for statements
concerning the commission of a crime
and the abuse of children or the elderly.
(see Fla. Stat. §44.405 (2018) for other
exceptions). Once the opening statement
is concluded, the mediator will ask the
plaintiff to describe the issue that caused
the litigation, then listen to the defendant’s
position.
Often a mediator will call for a ‘caucus’,
explaining that a caucus is a confidential
private meeting, with one side at a time.
The mediator cannot reveal to the other
side what was said in the caucus, unless
there is a waiver by the party as to any
aspects of the conversation. A caucus aids
in resolving a case because each side tends
to indicate if an undisclosed issue exists,
which can foster a settlement.
If a resolution is not achieved, the judge will
set a trial date. At trial, the prevailing party
may be awarded a judgment, but then must
seek enforcement. Pro se litigants are the
norm in Small Claims Court. Pro se parties
sometimes believe that if they prevail at
trial, a judge will write them a check for the
damages. An interesting concept indeed -
but clearly misguided. Consequently, the
mediator may inform the parties of what
to expect in the case of a settlement or an
impasse, whichever may be the case.
to stay the case because the defendant has
filed a “suggestion of bankruptcy” in Federal
court.
Small Claims Court in Florida is a viable
alternative for Floridians and attorneys to
bring minor court claims before a judge and
take advantage of free mediation to increase
the possibility of an amicable settlement.
The small claims plaintiff will also get his/
her case heard much sooner than in County
Court. Palm Beach County is fortunate to
have a Small Claims volunteer mediator
If a settlement is achieved, which occurs program in place where the mediators have
in approximately seventy five percent the same skills and experience level as
of the cases in Small Claims Court, the most paid mediators. The only difference is
agreement is prepared by the mediator, that the volunteer mediators are driven only
on a Court’s prescribed form, and signed by their willingness to serve the public as
by both parties. The signed settlement well as the legal community.
agreement is presented to the judge who
also signs it, thereby dismissing the case, For additional ADR tips and resources, go to
but retaining jurisdiction in the event that http://www.palmbeachbar.org/adr-2/.
a party breaches the settlement agreement.
If the settlement is breached, the non- John Sochacki is a graduate of University of Miami
Law School and a Florida Supreme Court Certified
breaching party notifies the court, who will Mediator in Circuit, Family and County Court and
enter a judgment for the amount indicated Certified Arbitrator. He is an Approved FINRA Mediator
in the settlement agreement as the “default” and Arbitrator. Since 2006 he practices exclusively in
amount, which is usually the amount sought ADR. He was a volunteer Small Claims Court mediator
in the 15th Circuit for 10 years. He can be reached at:
in the complaint less any money already
[email protected].
paid. It is worth noting that a confidential
settlement agreement is also possible in
Small Claims Court, though unusual.
By example, your client is owed $6,200. The
cost of litigating in County Court for the
$6,200 would include higher attorney fees,
as greater preparation and time is required,
and court costs. However, if the client is
willing to limit possible damages awarded
to $5,000 in Small Claims Court, it could be
advantageous from a time and monetary
perspective. Additionally, defendants are
typically more willing to conform to their
agreement knowing that, if they do not pay,
there will be a judgment entered for the
higher default amount. If one can proceed
in Small Claims Court and reach a stipulated
settlement, it can be cost advantageous,
save time, and possibly foster maintaining
the parties’ relationship.
The courts encourage settlement and want
the parties to mediate before they hear any
dispositive motions, other than a motion
PBCBA BAR BULLETIN 6