In the state of Florida, all domestic relations cases, including actions involving divorce and paternity, and requests for the establishment or modification of timesharing, child support or related family issues are required to participate in family mediation at least once during the pendency of the case. Many people are not familiar with the mediation process, what it entails, how it works, and how it might benefit your case, so the purpose of this month’s blog is to explain the mediation process in the family law context.
Generally within the first three to six months of a family case being filed, it is likely you will get an Order of Referral to Family Mediation, requiring you and the other party to engage in the mediation process. In most, if not all, counties in Florida you must complete mediation prior to setting a hearing on any type of relief either party may have requested in their pleadings. An exception to this would be if a true emergency situation exists, usually involving some level of danger to children or the immediate dissipation of marital assets. Other than those types of emergency situations, you will be required to first attend mediation and attempt to resolve the issues in your case on your own prior to the Court getting involved.
What Exactly is Mediation?
So what exactly is mediation? Mediation is a form of an Alternative Dispute Resolution where the parties meet together with an independent legal evaluator who will help guide and facilitate the parties in negotiating the terms of a resolution to the issues presented in their case. For example, in the divorce context, the mediation would be used to try and resolve issues related to the equitable distribution of the marital estate, possible alimony considerations, the creation of timesharing and parenting plans, including child support and health insurance considerations, and all other issues unique to your particular case. Through mediation, the parties have the opportunity to take control of their case and work out a resolution that is agreeable to both parties.
Choosing a Mediator
In choosing a mediator, it is important to select someone that is well versed in the subject matter at issue. In Florida, all family law mediators will have to have been certified in Family Mediation by the Florida Supreme Court, meaning that they have gained the requisite knowledge and experience in family mediations, such that the Florida Supreme Court has qualified them to conduct these mediations. However, as is the case within many professions, not all mediators are created equal, so it becomes important to select a mediator with a solid reputation for resolving your specific type of case. Sometimes asking friends or family for a referral of someone they have had a successful mediation with can help in choosing a mediator that is right for your case. Both parties will need to agree on one mediator, so if there becomes an issue in selecting a specific mediator, and the parties cannot agree on one, then the Court will appoint a mediator for your case.
In order to facilitate open negotiations, all communications made by either party during a mediation are confidential. This means that if one party makes an offer that is not accepted, the other party cannot then try to use that offer later in the case as leverage while arguing the case with the Court. Exceptions to this confidentiality rule will include any allegations of elderly or child abuse, which the mediator will have a duty to report should such allegations arise. Otherwise, what is said in mediation stays in mediation.
Coming to an Agreement
Now even though you may be ordered to attend mediation, that does not mean that you have to come to an agreement at mediation. An Order of Referral to Mediation will compel you to attend the mediation, however, after you arrive and the mediator provides their opening statement about the mediation, you have complied with the mediation order and would be free to leave the mediation at that time. Now that is not always advisable, since mediation can provide an invaluable benefit in trying to get your case resolved without judicial intervention, which many times can be best, particularly if there are children at issue. During the mediation process the parties will have much more control over the terms that resolve their case, while also affording more room for creative resolutions to some of the difficult issues that can arise in family law cases.
It’s been said that a good mediation agreement will sometimes end up leaving both parties unhappy, as coming to an agreement will usually entail give and take on both sides. Therefore, it is important to consider, prior to mediation, what your bottom line on negotiations will be. I try to advise my clients to have several different mindsets when going into a mediation. The first being to consider what your ideal outcome would look like in terms of resolutions of each specific issue and then to have back-up plans for other ideas that, while you may not be in love with some of the resolutions, you would be able to live with them. If you are able to reach an agreement that you are ultimately comfortable with, even though you may not love every aspect of it, then that generally means that you have reached a good agreement. In determining what a good agreement may look like, it becomes even more important to have an attorney who will listen to your needs and that of your family, such that, in many ways, finding the right lawyer can become more important than finding the right mediator.
If you have additional questions or concerns about the mediation process or your family law case, it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances.
Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law. Contact Attorney Frank today at [email protected] to discuss any family or marital legal issues you may be experiencing.