Car accident mediation: what to expect

Short answer: a Florida car accident mediation is a structured settlement meeting, run by a neutral mediator, usually with your lawyer, the other side's lawyer, and an insurance company representative who has authority to settle. The mediator explains the process, may meet with each side privately, and helps both sides work toward a deal. Nobody has to settle. If you do, the deal is written down and signed before you leave.

This is general information about Florida law, not legal advice. Your lawyer can tell you how these rules apply to your crash.

Two kinds of car accident mediation in Florida

Pre-suit mediation through the state

Florida has a motor vehicle claims mediation program. Either party may demand mediation, before a lawsuit is filed, of a claim made to an insurer for personal injury of $10,000 or less, or for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle.¹ The program is overseen by the Florida Department of Financial Services.¹²

Key points from the statute:¹

• The insurer pays the cost of the mediation conference, except as the statute provides. For example, if the policyholder fails to appear, the conference is rescheduled only after the policyholder pays for it.
• An insurer is treated as not appearing if its representative lacks authority to settle the full value of the claim.
• Only one mediation may be requested per claim unless all parties agree to more.
• Mediators must be approved by the department. To qualify, a mediator must hold an active Florida Supreme Court certified circuit court mediator certification, or have been an approved department mediator as of July 1, 2014 who conducted at least one department mediation in the 4 years before that date.
• What is said in this mediation is not admissible in a later case about the claim.
• You cannot demand this mediation after a lawsuit is filed on the same facts already mediated.

Court-ordered mediation after a lawsuit

Once a lawsuit for money damages is filed, Florida law says the court must refer it to mediation if one party asks and is willing and able to pay the costs, or the costs can be fairly divided, with some exceptions such as small claims cases.³ A judge can also order mediation, or the parties can agree to it.⁴ The rest of this guide focuses on this court-ordered kind, because Florida's civil rules spell out how it works.

The insurance company's role

In many car accident cases, the defendant's insurance company is the one that would pay a settlement. Florida's civil rules make sure the insurer is at the table. For an insured party to count as having appeared, these people must attend in person, or by video if allowed:⁵

1. The party, or a representative with full authority to settle without checking with anyone else.
2. The party's lawyer of record, if any.
3. A representative of the insurance company who is not its outside lawyer and has full authority to settle up to the plaintiff's last demand or the policy limits, whichever is less, without checking with anyone else.

Unless the parties agree otherwise, each party must file a notice 10 days before mediation naming who will attend as party or insurance representative and confirming their authority.⁵ If the people named do not show up, the court presumes, unless shown otherwise, that the party failed to appear, and the court must impose sanctions on motion when a party fails to appear without good cause.⁵

Before the day: how to prepare

Know the insurance picture

Florida law lets a claimant ask in writing for information about the other side's liability insurance. The insurer must provide, within 30 days of the written request, a sworn statement listing the insurer's name, each insured, the liability coverage limits, any coverage defense it believes it has, and a copy of the policy. This covers excess and umbrella policies too.⁶ Your lawyer can make this request.

It also helps to understand two Florida auto insurance rules that often come up in settlement talks:

• Personal injury protection (PIP). Florida-required PIP coverage pays, among other things, 80 percent of reasonable expenses for medically necessary care, up to a $10,000 limit in medical and disability benefits, if the injured person gets initial care within 14 days after the accident. Other conditions apply.⁷
• The threshold for pain and suffering. To recover damages for pain, suffering, mental anguish, and inconvenience from a covered driver, a plaintiff's injury must involve, in whole or in part, significant and permanent loss of an important bodily function, a permanent injury within a reasonable degree of medical probability (other than scarring or disfigurement), significant and permanent scarring or disfigurement, or death.⁸

Fault matters too. Under Florida's comparative fault statute, in a negligence action the statute covers, any party found greater than 50 percent at fault for his or her own harm may not recover any damages.⁹

Watch your deadline

Florida's statute of limitations lists actions founded on negligence among those that must be brought within two years.¹⁰ Ask a lawyer which deadline applies to your crash.

Gather your papers

Bring what helps you and your lawyer evaluate offers: the crash report, photos, medical bills and records, proof of lost pay, repair estimates, and your own notes. Information that is otherwise available as evidence does not become protected just because it was shown at mediation.¹¹

Plan your attendance

Check your notice for the date, time, and place, or the video instructions. In court-ordered civil cases, the court or its designee must send that notice in writing unless the referral order or the parties' agreement already includes it.⁴ Florida's rules allow mediation in person, by video, or both, depending on the referral order or the parties' agreement.⁴ For tips on remote sessions, see online mediation.

The day itself

Opening

At the start, a Florida certified mediator must describe the process and the mediator's role, and tell everyone that mediation is consensual, that the mediator cannot impose a result or decide any part of the dispute, and that communications are confidential except where the law requires or allows disclosure.¹²

Private rooms and shuttle talks

The mediator is in charge of the process and may meet privately with any party or its lawyer.¹³ Your lawyer is allowed to talk with you privately at any time.¹³ Ask your lawyer how your session will be set up.

What the mediator can and cannot say

Florida's mediator ethics rules allow a mediator to point out possible outcomes and discuss the strengths and weaknesses of a claim or defense. The mediator must not offer an opinion meant to coerce or unduly influence you, and must not predict how the court in your case will rule.¹⁴ If the mediator thinks you do not understand how an agreement could affect your legal rights, the mediator must tell you that you have the right to independent legal advice.¹⁴

Breaks and second sessions

The mediator may adjourn at any time and set a time to come back.⁵ If you need a break, ask.

Nobody has to settle

The rule on attendance says nothing in it requires anyone who attends to sign a settlement.⁵

How it ends

If you settle, all or part of the deal must be written down and signed by each party or a representative with full authority to settle, and the mediator reports the signed agreement to the court, without comment, within 10 days.¹⁵ The mediator must also discuss with you and your lawyer how the agreement will be formalized and carried out.¹² A court can enforce a mediated agreement, including by entering judgment on it.¹⁵ For what happens with the money afterward, see our guide to personal injury mediation.

If you don't settle, the mediator reports the lack of agreement to the court without comment or recommendation.¹⁵ Your case continues. Mediation communications are generally confidential and privileged, so offers made in the room generally cannot be used against you later.¹¹

Before the session, read what to expect at court-ordered mediation, and see whether a mediated settlement is legally binding before you sign. For injury claims more broadly, see personal injury mediation.

Find a Florida certified mediator in our Florida directory, or get matched with one who fits your case.