Introduction to Family Mediation.
In most areas of civil law in Florida, mediation has become the norm before a case can proceed to trial. This is particularly true in the area of family law, including matters of divorce, parenting and timesharing, child support, alimony and equitable distribution of assets. In fact, many family courts require the parties to attend mediation before setting a hearing on any type of relief, whether temporary or otherwise. As a result, understanding the mediation process can be useful to anyone involved in a civil or family law court proceeding.
What is Mediation, and What it is Not.
Mediation is a process where the parties (and usually their attorneys if they are represented by counsel) meet together with a third party known as the mediator. In Florida, mediators go through special training and are certified by the Florida Supreme Court. A mediator may or may not be an attorney, although many mediators are attorneys. In some cases, family law mediators are licensed mental health or counseling professionals.
The purpose of mediation is to discuss the issues with the objective of reaching a resolution or settlement. The mediator does not hear evidence and make any type of decision or ruling on the case. Instead, the mediator acts as a facilitator and negotiator and tries to help the parties reach an agreement on some or all of the issues in dispute.
How Mediation Works.
Every mediator has their own style and method for conducting mediation. However, on average, most mediators will conduct the mediation using two rooms, one for each party. The mediator starts out giving a basic explanation of mediation to each party. After that, the mediator then gives each party a chance to briefly state the issues and their position on those issues. If attorneys are involved, the attorneys usually state their client’s position during this initial part of the mediation. Often, the attorneys will have already submitted to the mediator a brief written statement explaining the facts and laying out the issues in dispute.
Once the introductory matters are concluded, the mediator will first meet with one party to identify that party’s position. For example, in a divorce, the mediator might meet first with the party who filed the initial divorce petition. The purpose would be to see what that party seeks as far as parenting, child support, alimony, distribution of assets, etc. Once the first party’s position has been identified, the mediator will then go to the other party and discuss these areas of requested relief. Thereafter, there usually follows a process where the mediator goes back and forth between the parties and tries to get the parties to agree on the issues in dispute. Some people have likened this to a form of “shuttle diplomacy” between the parties.
If an agreement is reached on some or all of the issues, the mediator (or the attorneys for the parties) will prepare a written settlement agreement to be signed by the parties. This agreement is usually presented at a later date for approval by the court.
If the case does not settle in the mediation, there are several potential ways it can end. First, if there is hope that the case can settle even though it has not on the first “go round” then the mediation can be continued to another date. If the case has not settled and it is apparent that it likely will not, the mediator can declare an “impasse” at which the mediation is concluded.
Some Rules of Mediation.
While each mediator has their own way of conducting mediation, there are certain rules which are essentially universal in their application.
A) Mediation is voluntary as to its outcome. While a court can order that the parties attend mediation, the court cannot force the parties to agree to a settlement. That choice belongs solely to the parties.
B) Mediation is confidential and privileged. Matters discussed and disclosed at mediation cannot be disclosed outside mediation. This means that if the case does not settle, one party cannot use the discussions or negotiations as evidence against the other. In addition, the mediator cannot be called into court to testify about the discussions. Further, the participants in the mediation, including the parties, the attorneys and the mediator, are not at liberty to disclose what was discussed in the mediation. The reason for these rules is clear; the courts wish to promote parties openly discussing settlement without being afraid that their discussions will be used against them at a later date. [Note: there are a few exceptions to the “no disclosure” rules. These deal with statements about child or elder abuse or threatened violence against another person].
C) As stated above, the mediator does “decide” the case; the mediator is there to facilitate settlement discussions. However, some experienced mediators will give their thoughts on the issues presented in an effort to help each side see the strengths and weaknesses of their case. Many parties find this insight helpful in understanding the risks involved in their case.
D) Although not necessarily a “rule” of mediation, most mediators will explain to the parties that in mediation, the parties control the outcome. If the case does not settle and goes to trial, the judge or jury will control the outcome of the case. By reaching a settlement in mediation, the parties avoid the risk posed by presenting the case in court. In addition to reducing risk, settlement at mediation can also save on the tremendous expense involved in preparing and trying a case.
Preparing for Mediation.
Before the day of mediation arrives, several things should take place. First, each party should give some thought to what they desire to accomplish at mediation. Often, it is helpful for a party to create an outline of the issues and how the party would like to see these issues resolved.
Second, if there are issues which require calculation, such as child support, it is helpful to have these calculations finalized and brought to the mediation. If there are assets or debts to be divided, having a comprehensive list of those may also be helpful. Most experienced mediators and attorneys will agree that the more preparation done ahead of the mediation, the more likely settlement can occur. There is often nothing more frustrating to the mediator and the parties than having an issue come up which requires further investigation or documentation before meaningful settlement can occur. A classic example of this would be where the parties are arguing over disposition of the marital home and they cannot agree on its value. If they had an appraisal completed before the mediation, this could overcome this obstacle.
Thirdly, it is important for a party to meet with their attorney in advance of the mediation in order to discuss the strategy and goals of the negotiations. In many ways, preparing for the mediation is as important as preparing for a court hearing. It should involve preparation and planning by both the attorney and the client.
County Mediation vs. Private Mediator.
Some counties offer a mediation program administered by the clerk’s office. The advantage of this type of mediation is that it is relatively inexpensive. For example, each party might pay an amount up to $100 each for the county mediation. However, the negative side is that the mediators often have limited time available. In some counties, the mediators are limited to two hours. This can restrict the negotiations and can often be an impediment to settlement.
Alternatively, the parties can agree to use a private mediator selected by the parties. These mediators can often schedule as much as an entire day at a time for the mediation. The main detriment is that the cost can be more significant (usually ranging from $200-$350 per hour). In most cases, the parties split the cost of mediation evenly. However, if one party cannot afford the private mediator, the other party can agree to pay the mediator’s fee as an incentive to using a private mediator. Most mediators require payment at the time of the mediation so it is important for the parties to bring their checkbooks and be ready to pay at the conclusion of the mediation.
|