What is Mediation, and When is it Used?
During a Dissolution of Marriage or a Family Law matter, the parties involved may choose, or the court may order attendance at Mediation. Florida statutes and the parties’ combined annual income determine the cost of mediation in Florida, when it is a court mediation versus a private mediation. A Financial Affidavit must be filed to determine the cost per individual and session, for the court mediation program. Most of the time, the parties split the cost of the mediator and pay for their own attorney to attend. Using mediation as an alternative can save time and money otherwise spent in court proceedings.
If ordered by the court to attend mediation, an Order of Referral to Family Court Mediation will be sent by mail or through the e-portal. A list of family mediators under a court contract will be provided with this order, usually for pro se litigants. It is up to the parties to choose a mediator from this list or find an alternative mediator. All mediators are bound by the ethical standards contained in the
Florida Rules for Certified and Court-Appointed Mediators. Remember that there is a deadline for selecting a mediator under court order.
Contested issues are discussed between parties under the supervision of a mediator who acts as a neutral to both parties and may help facilitate options for settlement. The most common issues in mediation are alimony, division of assets and debts, parental responsibilities, and time-sharing. Mediation is usually informal and the information discussed is always confidential.
What is the Role of a Mediator?
The mediator facilitates discussions toward a reasonable, equitable, and livable resolution to the parties’ legal conflicts. They provide options and alternatives to assist two people who may not be able to communicate well enough with each other to resolve their issues. Mediators are not permitted to provide either side with legal advice, even if a party is pro se (representing themselves). Mediators are also prohibited from providing therapy, counseling, or business advice.
Mediators may point out possible outcomes of the case and discuss merits of a claim or defense. Some mediators are attorneys, mental health professionals, and CPAs, so choosing the right mediator for your case is essential. Schwam-Wilcox & Associates provides mediation services for pro se litigants, litigants pre-filing the Petition, and litigants who have legal counsel.
Joint and Private Discussions
Mediation can occur with all the participants in the same room or with a party in one room with their attorney and the other party in another room with their attorney. The mediation can start jointly, with everyone in the same room and break out into private sessions called caucuses or start in a caucus. Discussions are confidential, and no one can be called to testify about what was said at mediation, including the mediator. However, the confidentiality of communications during mediation is not required where disclosure is required or permitted by law (intent to commit a crime, child abuse, etc.).
Mediation is different from the collaborative process, however, it adheres to the same principle of having the divorcing/separating parties work together to resolve disputes over property division, child custody, time-sharing, and other matters. Mediation gives the parties the power to make decisions for their family instead of a Judge who may or may not understand the situation. Judges are bound by certain rules and laws that the parties may not have to follow if they can agree upon something better and in the child’s best interest.
Both parties need to agree on decisions made during mediation and sign a written agreement on the decisions. There can be a partial agreement, a temporary agreement, a full agreement resolving all issues, an impasse (no agreement at all), or a continuation when mediation is going well, but more time is necessary to address all the issues and potential solutions.
Because mediators act as impartial neutrals to each party, creative solutions to issues are available for individuals to work out. Negotiations can be reached to fit each individual’s needs and capabilities. This provides a win-win situation that may otherwise feel one-sided if brought before a judge or jury for a decision
Before negotiations in mediation, each party should first understand what issues need to be discussed and have an agreeable outcome in mind. Organizing information and providing documentation about items, finances, and events can support the negotiation process. Once the parties reach an agreement, it shall be in writing and executed prior to the conclusion of the mediation in order for the terms to be binding. If disagreements cannot be resolved, these matters will need to be brought back to the court for a judge to decide or have a second or third mediation (there is no limit if the parties find it productive).
When property and children are involved during a Dissolution of Marriage or another Family Law matter, emotions are high, so it is important to be prepared for the mediation before attending. A party should always meet with their attorney for a strategy meeting before the mediation. When choosing Mediation, the parties can choose amongst themselves how to resolve their legal issues in the best manner for their individual families. All final agreements must be reduced to writing and executed by the parties.
As it relates to the children, you should be prepared to discuss all aspects of the child(ren)’s lives, including but not limited to the issues below:
- The division of time-sharing and specific time-sharing schedules
- How parental rights, responsibilities, and child care tasks will be shared
- Management and decisions regarding education and extracurricular activities
- How decisions about medical and dental care, religious participation, travel, and discipline will be shared
- Accountability and answerability of expenses related to education, medical and dental care, and child care
- Transportation for child exchanges
- Communication between parents and communication between the child(ren) and each parent during time-sharing
Settlements in mediation are completed when the decisions reached are written and signed by both parties. In some cases, these agreements need to be reviewed and approved by the court. Suppose there are still disagreements that cannot be reconciled. In that case, these issues will need to go to litigation for a judge or jury to decide, or you may attend additional mediations to see if the parties can resolve the issues at a later date.
Seeking Mediation or Looking to Hire a Mediator?
Whether you want to use mediation to resolve your legal family law issue, or you are already represented by a lawyer but need to hire a mediator, we can help. If you require a family law mediator, or attorney (lawyer) in Orange, Osceola, Seminole, Lake, or other counties throughout Florida, call Schwam-Wilcox & Associates at 407-245-7500, or Contact Us by completing the form below to schedule a consultation.
Our attorneys are here to guide you through dispute resolutions through in-person and virtual appointment. Schwam-Wilcox & Associates is a firm you can trust, and our attorneys are ready to help you with your legal needs. The main office is conveniently located near Winter Park, in Altamonte Springs, with appointments also available in The Villages. When you’re going through your worst, we are at our best!