Mediation

Miami Mediator Tony Roca is Certified by the Florida Supreme Court as both a Civil and Family Mediator. Additionally, Mr. Roca has specialized training in the areas of Residential Mortgage Foreclosure and Bankruptcy.

Mediating vs. Litigating a lawsuit or dispute can have several advantages including cost. Mediation is process by which a neutral third party, the mediator, facilitates the communication between the parties in an effort to try and resolve the issues without the need for a lengthy and costly litigation. The mediator is not a judge, he does not tell the parties what they should or should not do. Instead, he or she provides alternatives or options to the parties, in an informal setting, with the sole purpose of trying to reach an agreement that both sides can live with. Mediation can especially be helpful in mortgage foreclosure cases, by providing an opportunity for the parties to come face to face and attempt to come to an agreement or an alternative to the dreaded Clerk Sale that will result in the homeowner losing his or her house.

Mediation is not about wining or losing, it is about coming to an agreement where both sides win a little and both sides lose a little.

Confidentiality

All communications in a mediation are confidential. According to Florida Law, a mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s attorney. A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications. There are some exceptions, such as information that may be willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.

Residential Foreclosure Mediations

In the context of a Residential Mortgage Foreclosure, a mediation is usually the first and only time a borrower or homeowner comes face to face with a representative from the bank or an attorney representing the bank’s interests. Many homeowners try to defend their own cases and find themselves in a never ending labyrinth of applications, required documentation and deadlines, never truly understanding the process. Additionally, many times the efforts the homeowner undertakes alone, without the assistance of an attorney, result in a denial of the help requested due to lack of documentation, lack of timely submissions or, at times, simple misunderstandings or typographical errors in the documents and forms the homeowner submits. Mediators that handle Residential Mortgage Foreclosure cases have specific training in the context of these cases. Additionally, although not a requirement, most mediators are also attorneys. A mediator, however, can not give you legal advice. Even if he or she is also an attorney, they are not YOUR attorney. Attending a mediation without an attorney, just as handling these cases without an attorney, can be a confusing and stressful undertaking. A mediator, however, can help both sides, the bank and the homeowner, communicate effectively so that the process is easier.

In a mediation, the parties, both the homeowner and the bank, are in control. If the case continues to litigation, it is usually a Judge or, in some cases, a jury, that decides the fate of your home. This is an advantage for both sides, as, these days, the last thing the bank wants is another property to maintain while they sell it in a declining market, and the last thing the homeowner wants is to lose his or her home, or be subject, in the future, to a potential deficiency judgment.

Costs of Mediation

In most cases, the costs associated with the mediator are shared equally by both sides. Mediators usually charge an hourly fee, however, most residential mortgage foreclosure mediators will perform these services for a flat rate with a maximum time allotment.

Asking for Mediation

Until fairly recently, all residential mortgage foreclosures that involved a homeowner’s primary residence were mandatory before the bank could get a judgment. That is no longer the case. If you want your case referred to mediation, you must ask your attorney to request it. If you do not have an attorney, you must file a motion with the Court asking the judge to refer your case to a mediator. You can find a sample motion by clicking here. Your motion, once completely filled out, must be filed with the Court and a hearing must be set before the Judge that is assigned to your particular case. Most Judges in Miami-Dade County will freely grant these motions at the hearing.

What other cases can be mediated?

According to Florida Statutes, Chapter 44.102(2)

A court, under rules adopted by the Supreme Court:

(a) Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless:

1. The action is a landlord and tenant dispute that does not include a claim for personal injury.

2. The action is filed for the purpose of collecting a debt.

3. The action is a claim of medical malpractice.

4. The action is governed by the Florida Small Claims Rules.

5. The court determines that the action is proper for referral to nonbinding arbitration under this chapter.

6. The parties have agreed to binding arbitration.

7. The parties have agreed to an expedited trial pursuant to s. 45.075.

8. The parties have agreed to voluntary trial resolution pursuant to s. 44.104.

(b) May refer to mediation all or any part of a filed civil action for which mediation is not required under this section.

Tony Roca has extensive experience mediating all types of civil cases. Additionally, he has specific training in Residential Foreclosure mediations and has mediated hundreds of cases over the past 3 years in this area. If you would like your case to be mediated by Mr. Roca or would like to mediate your dispute before it becomes a lawsuit, please contact our office at (305) 771-3529 to coordinate. If you are not represented by an attorney, and have a pending lawsuit your would like to be mediated, please click here for a sample motion for mediation to request a referral to mediation from the Court.


     


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