In this podcast, Fort Myers family lawyer Vera Bergermann explains the benefits of divorce mediation in Florida – including how it works, how much it costs, why it is a better alternative to litigation, and more.
Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Vera Bergermann, Family Lawyer
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Read the Transcript of this Podcast Below.
Diana Shepherd: My name is Diana Shepherd and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. Joining me for this podcast is family law attorney and mediator Vera Bergman, who’s here to talk about divorce mediation in Florida. The founder of Bergermann Law Firm, which has offices in Fort Myers and Naples, Vera has been practicing Family Law exclusively since 1996. She holds a Master’s degree in taxation, a Bachelor’s in Psychology, and she’s been a certified Family Law mediator for more than 20 years.
Let’s start with the basics. What is divorce mediation?
Vera Bergermann: Divorce mediation is the resolution of outstanding issues between two spouses, such as a distribution of assets, deaths, or the creation of a parenting plan. The mediation takes place in a controlled confidential mediation process, and is controlled by the mediator. The mediator is a neutral third party trained in conflict resolution, and most of the time the session is attended by the spouses’ attorneys.
Is divorce mediation mandatory in Florida?
Vera: Yes, it is. Mediation is actually part of our family law procedures here and it is required before a case goes to trial. It can also be required in post-judgment issues before they proceed to a hearing and a motion.
How does divorce mediation work? What are the nuts and bolts?
Vera: The court orders the parties to attend mediation and a date and time are scheduled between the parties, their attorneys, and either a mediator or the court mediation department. That’s the start of the whole thing.
What is the first question that someone should ask to make sure that she or he chooses the right mediator for their divorce?
Vera: I would say the first question is: “What is your professional background?” Mediators can be former judges, attorneys, financial professionals, mental health professionals, or people with degrees in alternative dispute resolution. If your case is all about children, for example, you would probably choose a mental health professional over a financial professional. And if this is a case where the big issues are alimony and the distribution of assets, you would be better served by having a financial professional as your mediator.
Is divorce mediation effective?
Vera: Yes, most cases settle through mediation. There are actually statistics collected by departments as part of a state court system where they have monitored the court mediation departments to see their level of success, and it has been as high as 95%.
When is mediation a better choice than going to court to resolve divorce-related issues?
Vera: The short answer is “always.” With mediation, you have control: the two parties have control over their futures in mediation. They’re not giving it up to a third party – usually a judge who doesn’t even know them or what’s best for their family. So that’s why the answer is “always.”
What are the pros and cons of divorce mediation versus litigation?
Vera: There’s more creativity available to the parties through mediation. A judge has to follow the statutes and case law. For example, if somebody wants to buy another person out of the house, the judge would say, “I’m going to allow the husband to buy-out the wife’s share of the house and it will be accomplished within 60 days.” That’s all the judge can do. In mediation, the parties can say, “We are going to have the husband buy-out the wife’s share of the house, but we’re going to allow him to make the payments to her over the course of the next four years.” Parties can make that kind of creative arrangement between them; the judge cannot.
Divorce mediators are usually also lawyers, financial experts, or mental health professionals. Can a mediator wear two hats during the process: such as a mediator and lawyer, or mediator and therapist?
Vera: Never! And that is through the ethics of the mediation – and for me, also through the Florida Bar rules. But the same is also true of the mental health professional who is a mediator: that person cannot be counseling one of the parties and serve as the couple’s mediator. Again, we find the answer to that question in the ethics rule for the mediation and the reason, of course, is it would be a conflict of interest.
Do mediators provide legal advice? For example, can you give a couple legal advice if they ask you for it?
Vera: No, not at all. That would again be a conflict and would come under the ethics rules for the mediator. In fact, most mediators will actually put a sentence in a mediation agreement that says the parties acknowledge that the mediator has not provided any legal advice.
If a divorcing couple hires a mediator, do they also need lawyers?
Vera: I believe that people should always be educated about the law before attending a mediation session. There should be a comprehensive consultation with an experienced family law attorney, even if the people don’t retain them for mediation – because it’s very difficult to go into a mediation asking for alimony when you have no clue what the law says about alimony.
Are mediations ever held with more participants than just the parties, their attorneys, and the mediator?
Vera: Sometimes you have a mediator-in-training, because part of the process of becoming a mediator is observing mediations. Another part of the process of becoming a mediator in Florida is that you have to co-mediate. So if a mediator-in-training wants to get to the final point, they have to attend mediation sessions. It could be that the parties are with a mediator who has offered to provide the training. Of course, the permission of all participants is required. They can’t have a mediator-in-training acting as a co-mediator or observing if the parties don’t approve of it, but I’ve never seen anyone disapprove of that.
Mediation can also have a financial professional, such as an accountant, in attendance. The party’s accountant might attend if he has a great deal of knowledge about the family’s finances. You can also have a child development professional attend; if the child has a counselor, for example, that person might be there. Sometimes an adult child is present; especially if it’s a second marriage for an older couple, they might each bring an adult child with them. Other mediations require a language interpreter. These are some of the different people you might see in a mediation session.
Does every divorce-related issue have to be resolved during mediation? Or can a couple choose to resolve only some of their issues during mediation? And if so, how might they resolve the rest of their issues and finalize their divorce?
Vera: You can have a partial agreement. You can also have a temporary agreement. An example of a temporary agreement is this: two people have been following a certain parenting plan and they decide to change it. They say, “We’re going to go to every other week time sharing, but we don’t know how our child will deal with it. We don’t know how we’ll deal with it. We will try this out for 90 days, and then we’ll come back to mediation.” They may have resolved their financial issues, but this parenting issue is still open, and then when they come back, they will be in a position to finish out the parenting part.
You can have different parts finishing at different times in mediation, and you can also just have a plain old customized agreement. For example, a divorcing couple may have resolved all of their financial issues – which will be written up by the mediator, signed by the parties and their attorneys, and then it will go to the judge for a signature – but they may have absolutely no meeting of the minds whatsoever on their parenting issues. In that case, the mediator will note on their report that there has been a partial agreement but that there remain issues to be resolved by the court. That’s all the court knows about what’s happened, since mediation is a confidential process. If the parties are able to resolve these issues before a trial is necessary, then they could return to mediation again. If not, they could negotiate through their attorneys or they may choose to go to trial on those issues. That’s an example of a situation where you are resolving some but not all of the issues.
Is there a difference between court-ordered divorce mediation and private divorce mediation?
Vera: Usually just the cost and choice of venue. With court mediation, there’s no choice: you are in their court. Court-ordered mediation is generally less expensive than private mediation because it’s subsidized by the state of Florida. For example, in our county, we have a system whereby if the parties together make less than $50,000 per year, they each pay $60 for three hours of mediation. $60 a piece, that’s only $20 an hour from each person for a total of $40 an hour from both, but the mediator gets paid $100 an hour because the state subsidizes that additional $60 an hour. If the parties make between $50,000 and $100,000, they pay $120 apiece for three hours. Once again, the state is subsidizing, but it’s a little less. If they make $100,000 or more, they just pay the mediator directly at the rate of $150 an hour; $150 an hour for a private mediator is inexpensive. If it’s a matter of cost, you would go to the court mediation. Regarding venue, a private mediator will generally go to an attorney’s office, or they may have their own offices in perhaps a more comfortable setting. Those are the trade offs.
Do both parties need to be in the same room during a mediation session? What if one party now lives in another city, county, state or even country?
Vera: Both parties do not have to be in the same room during the mediation sessions. Mediations can be be held when one party is on the phone – or the mediator and the parties could all be in different locations, and they’re using an online connection such as Skype. Many times, you have a situation where the parties are so averse to one another – or there’s been domestic violence – that they never see each other during the mediation, even though they are in the same office complex. One party and their attorney will be in one room and the other party and attorney in another room and the mediator goes back and forth – like the old Henry Kissinger Peace Talks – from room to room.
Some people are confused about the purpose of mediation versus marriage counseling. Can you tell us about the difference between the two?
Vera: Mediation resolves the issues surrounding a legal matter, such as a divorce or paternity case, and marriage counseling resolves the issues between the spouses to allow the marriage to continue. You can have counseling when the parties are not married yet. Perhaps they have a child in common, and they want to be able to stay together for the sake of their child even though they’re not married. So it’s like marriage counseling. The difference between counseling and mediation is that one is about keeping people together as a couple and the other is about resolving their issues so they can live their lives separately.
Why did you decide to become a mediator?
Vera: I believe in the process of self determination as opposed to having an elected official – because judges are elected officials; even if they’re appointed, they still have to be elected – deciding what’s best for you and your family. I prefer to bring people together to resolve issues as opposed to trying a case in court. Unfortunately, I still try many, many cases a year at trial and in motion hearings. I wish I never had to do that again and I could just mediate, because that’s all some lawyers do.
Diana Shepherd: My guest today has been Vera Bergermann, a certified family law mediator and experienced family lawyer with offices in Fort Myers and Naples, Florida. To learn more about how Vera and her experienced team at Bergerman Law Firm can help you choose the right divorce process for your unique situation – whether that’s an alternative dispute resolution process like mediation or traditional litigation – request a free initial telephone consultation at www.bergermannlaw.com.