Five compelling reasons to build a presuit mediation clause into your business contracts.

• Author: Christiansen, Mike
• Position: Florida

Business people hate litigation. Loathe it. Fear it. They know it as it is--scary, expensive, unending, a drain on their time, their staff, their resources. The uncertainty of it skews projections and profit forecasts and drags down productivity. It casts business people into an unfamiliar world, with its own sense of time, its own jargon, its own rules, and its own decisionmakers. Yes, business people hate litigation. So why, then, do we as lawyers--to whom our business clients look for legal guidance and leadership--continually write business contracts (1) with the same tired clauses regarding venue, jurisdiction, choice of law, and prevailing party attorneys' fees? Why don't we start steering our business clients away from litigation? Why not start writing business contracts that provide for presuit mediation?

Presuit mediation is the next wave of alternative dispute resolution (ADR), the sleeping giant that can revolutionize the way business disputes are resolved. We as lawyers know that many courts insist on mediation at some point in the litigation process, (2) but why wait? It's time for The Florida Bar to show leadership on this issue and make a serious and honest effort to promote a more cost effective and peaceful solution to business disputes.

Presuit Mediation Explained

Before advocating the presuit mediation alternative in your client's business contracts, you must first be able to articulate what presuit mediation is and understand it yourself. F.S. [section] 44.1011(2) defines mediation as:

a process whereby a neutral third person called a Mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the Mediator includes, but is not limited to, assisting the parties and identifying issues, fostering joint problem-solving and exploring settlement alternatives.

Likewise, the Florida Supreme Court in the Rules for Certified Court Appointed Mediators offers the following definition at Rule 10.210: "Mediation is a process whereby a neutral and impartial third party acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement."

The...