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In the 1980s the concept of mediation and alternative dispute resolution was introduced in Florida for family law cases. Now, mediation is the primary and preferable path to try to reach a resolution in a case. In some counties, including all of the ones in the Tampa Bay area, mediation is required before going to court.
It is universally agreed that when possible, allowing parties to make their own decisions that impact their own family with the assistance of a mediator and lawyers is much better than having a judge tell everybody what to do.
The best way to think about it is that the parties and their lawyers should start every case on a settlement path. That means problem-solving and gathering financial disclosure and other information to make good decisions in the settlement. Only if the settlement process fails do the parties and their lawyers switch gears and turn to the litigation path.
The purpose of mediation is simply to attempt to broker an agreement with the parties involved regarding some, if not all, of the issues in a divorce. Mediation allows the parties to resolve temporary and permanent issues. In the best cases, the parties enter mediation and get a global settlement. That means all issues are permanently resolved.
When this happens in a mediation, the mediator or one of the attorneys will start boiling down the agreement either via pen and paper or a laptop. As Florida’s a contract state, if all the issues are resolved and signed off on by the parties, then in the majority of cases all that’s left to do is to take the agreement to the judge and have the judge sign off on everything and finalize the divorce.
Not only should most people with a contested divorce case try mediation, but also almost all counties will require the parties to try mediation before coming in front of the judge to litigate their disputes.
For example, in the Tampa Bay area, Pinellas County, Pascoe County, and Hillsborough County all have standing orders requiring the parties to try mediation before going in front of the judge and asking for help. There are some exceptions to this general rule. For example, cases with domestic violence may be best served proceeding right to the judge without going into mediation. However, in most counties the attorney will need to seek the judge’s permission before skipping over mediation.
Without question the greatest benefit to the mediation process is that it gives the parties involved a chance to resolve their case by themselves, without submitting their case to a judge whom they barely know.
The mediation process, because it is a negotiation, gives the parties a chance to seek a win-win resolution or to come up with alternative resolutions that benefit everyone involved. Litigation, while necessary in certain cases, is indeed a win-lose proposition. In effect, there can only be one “winner” or “loser” in trial. Trial is an exercise of loss of control by the parties. A judge is making decisions for their family’s future. Settlements reached in mediation tend to have a higher compliance rate, and ultimately have a higher perceived fairness by the parties involved as compared to a trial.
Mediation is not a perfect entity and does have some potential drawbacks. Some of the potential drawbacks include:
As we discussed before, almost universally we are taking our cases from the very beginning and moving them on a settlement path. While cases can resolve themselves at any time among the lawyers or even among the parties, our settlement path usually has a goal of a mediation settlement conference.
At the onset of representation, we are working with our clients to discover all of the issues that need to be resolved. Most cases have some or all of the “big five” issues: parental responsibility, alimony, equitable distribution, child support, and attorney’s fees. Most cases also have other issues that are important to the parties and must be worked out. For example, it’s not uncommon to have a unique issue as it relates to the marital home and how one or both the parties want to get that resolved. First and foremost, the issues must be identified and the goals for the client articulated.
Mediation should never begin until financial disclosure is completed. Otherwise, we would be running the risk of trying to settle a case without knowing all of the important facts of the case. Being sloppy and trying to settle a case without knowing the facts can lead to terrible resolutions and unfair deals.
Therefore, the onset of the case is the financial disclosure process. This process can take weeks or it can take months. Clearly, the more assets and liabilities involved, and the more unique the circumstances of the parties, the longer this process can take. Being proactive about the financial process from the very beginning will result in a mediation happening as quickly as possible.
When the financial disclosure process is complete or nearing completion, it will be time to attempt to coordinate a mediation with the other party. Many times this is as simple as picking up the phone and mutually agreeing upon a mediator, date, and time. Often one attorney will throw out a list of three to five mediators to the other attorney, then let the other attorney choose the mediator.
Sometimes one of the parties is not interested in getting the case towards mediation, or is moving too slowly through the discovery process. In these cases, we will want to file a motion with the court asking them to refer the clients to mediation within a specific number of days. In this situation, the court order will determine exactly which party pays for the mediation.
Once a mediator is selected and the court is notified, the mediator will usually contact the parties with the cost of mediation and how long the process should take.
Most often, the time frame from attempting to coordinate mediation to actually getting in front of the mediator is between four to eight weeks. It can be shorter, but almost is never longer than eight weeks.
Assuming that all discovery has been completed, the attorney will want to meet with the client a week or two prior to mediation. This is an opportunity to do the following:
We encourage our clients to get a complete physical examination before a mediation. Remember, a mediation can last for quite some time. It is not uncommon for global mediations to take as many as eight hours or even longer. We need to know in advance if that sort of time frame might be detrimental to our clients. We want to rule out any illnesses and mitigate any detrimental effects of the stress of the mediation process.
In some cases we want to have the appropriate experts complete their evaluations before going into mediation. For example, a vocational evaluator who may be evaluating an unemployed or underemployed spouse should probably complete that work before the parties go into mediation to resolve an alimony or child support issue. Likewise, if the need of the spouse is in question and an accountant has been hired by our team to determine the validity of an alimony claim, attending mediation without the report completed is a waste of time and money.
The mediation process can happen over a series of meetings or just one. Most of the time we start with one meeting for four or eight hours, and if needed we agree to continue to another mediation at another date and time.
You will arrive at the mediation conference with your attorney. In most cases, private mediators prefer to start the mediation caucused. That means, they prefer to start with the attorney and client in one room, and the other client with his or her attorney in the other room. In some cases it’ll be appropriate to bring everybody together; in other cases the husband-and-wife may not see each other during the mediation at all. Sometimes, it might be appropriate to bring the lawyers together with the mediators to address issues.
First, the mediator will introduce himself or herself to the client and the attorney. The mediator will explain what mediation is and how it’s different from other forms of dispute resolutions.
Second, the mediator will explain his or her role in the mediation process. Specifically, that the mediator is neutral and impartial and doesn’t take sides. The mediator can’t make decisions for the husband and wife, but hopefully can help the husband and wife make their own decisions. Finally, the mediator is not a lawyer or a judge and cannot give the parties any legal advice or opinions. That’s a job for the lawyers.
Third, the mediator will explain the unique aspects of the mediation process: that mediation is confidential, that it is informal unlike court, and that the parties are allowed to present their positions and interests. Also, if a party needs to speak to a family member or professional (i.e. an accountant) regarding any questions that arise, they can contact the appropriate people to get their answers.
Third, the mediator explains the ground rules of the process. For example, how is this going to go? How long are we going to be here? What are the arrangements concerning fees? Will this be in one session or multiple sessions?
Fourth, the mediator gathers information on the parties and their issues. In many cases, the attorneys will submit written memorandums to the mediator in advance of the hearing.
Fifth, the mediator will identify the issues and develop an agenda for discussing and resolving them. Remember, most divorce cases have more than one issue to resolve. You must handle them one by one, and the mediator and the attorneys can decide which issues make sense to tackle first.
Sixth, the mediator will use his or her mediation and negotiation skills to help move the parties towards compromise.
Seven, hopefully, the mediator has helped the parties reach an agreement or at least an outline of one. The mediator will then go to both parties and see if this is exactly correct. If a deal is struck, then the mediator will begin drafting an agreement right away, usually with the help of the attorneys.
Finally, if and when an agreement is signed, the mediator will file the agreement with the clerk of the court, prepare a mediator’s report letting the court know what happened, and give copies of the final agreement to the parties and their attorneys.
Often parties are unable to reach an agreement at mediation. It’s important to recognize though that does not mean all is lost and the case must proceed to trial. For example, it is often the case that despite the best efforts of the parties and their attorneys that some of the discovery process is not complete and therefore mediation could not be completed. If this is the case, then the parties can continue mediation for another day.
Sometimes, it’s a matter of parties that are just too far apart at this moment but may need some time to help bridge the gap. In these cases, the parties may also choose to continue mediation for another day.
Sometimes, the parties are very far apart and the case does indeed seem destined for litigation and trial. Even in these cases, even though the attorney and the client must shift gears and head towards the litigation path, it’s important to recognize that many of these cases also resolve themselves down the line.
This is especially true when one of the things holding up the agreement is a misunderstanding of the facts or the law by one of the parties. The trial litigation path among other things, educates the parties to the law and the facts. As a result, it’s not uncommon to see cases settle on the eve of trial, or even on the courthouse steps. In any case, the possibility of a settlement is alive and well a lot longer than people really think it might be.
The mediation process is an additional cost for both parties. Mediators are required to provide both parties and their attorneys with a written explanation of the cost before mediation begins. As the mediator is a neutral party, he or she cannot give or receive money or a commission in exchange for referrals. Your attorney will probably have some recommendations for a mediator to hire. Rest assured this is simply because your attorney knows who can get the job done and help you reach a settlement if at all possible.
Under Florida law fees charged for mediation must be reasonable given the nature of the case. All fees and costs should be appropriately split between both parties. The actual fee depends on whether the mediation is public or private.
“Public” court-ordered mediation: Most of the counties in Florida provide a mediation program where the court can order family mediation and choose the mediator for the parties. In this case, the clerk of the court will collect a fee from each party of the case as follows:
In other words, if the combined income of the parties is less than $100,000, then the parties have the option of using the court-ordered public mediation model. This subsidized model has the benefit of being the most cost-effective way for parties to mediate in a divorce case.
“Private” mediation: The parties in the divorce case can also choose a private third-party mediator to help try to resolve their case. If the parties’ combined annual income is more than $100,000, then they will be required to choose the private mediation route. However, in many cases parties who might otherwise qualify for public court-ordered mediation might still choose to use a private mediator to reach a resolution.
The private mediator route has distinct advantages. The parties can choose their private mediator, and choose a time and a place to mediate that fits their needs. Also, the best private mediators tend to do mediation full-time or close to it, and derive their livelihood based on referrals from other divorce attorneys. That means that these private mediators need to do a great job every time in order to keep up their professional reputation. As a result, the best private mediators can increase the likelihood of reaching a full settlement between the parties; thus, no need for the divorce case to go to trial.
Is it required to make an offer to settle the case in mediation?
Not at all. Surprisingly, even though there is a requirement in most jurisdictions to attend a mediation, there is no requirement that either party even make an offer to settle at mediation, let alone offer what the opposing party wants. There is no basis for sanctions or punishment if neither party settles. However, there are certain cases where because of income disparity, one of the parties will be asking the other party to pay their attorney’s fees. In these cases, the fact that the party asking for fees did not make a good faith basis to settle can be relevant at a future hearing to determine allocation of attorney’s fees and costs.
If the agreement is unfair, can I just come back and change it later?
In almost all cases an agreement that’s reached in mediation will be binding upon the parties. This is true even if the agreement is unfair. Even if the agreement is grossly unfair.
Parties in mediation have almost inevitably exchanged full and fair disclosure, filed financial affidavits, and in many cases had the advice of attorneys. Florida is a state that believes in honoring contracts. A contract that is fulfilled with full and frank financial disclosure and with the advice and consent of attorneys is one that’s probably will not be set aside. This is true even if one of the parties does not speak English as a first language and the agreement is in English. There is a responsibility under Florida law for someone signing an agreement to only sign it if they can read and understand it.
What if I don’t do a financial affidavit? Can I still resolve my case in mediation?
In Florida, there is a requirement that a financial affidavit be completed and exchanged between the parties prior to the execution of any settlement agreements. That means that you cannot sign a final agreement in your case at mediation if you have not done your financial affidavit, or if the other party has not done their financial affidavit.