Mediation is a way for parties to privately resolve their dispute outside of court. A judge does not decide the issues that the parties successfully resolve at mediation. However, the judge always retains discretion to decide parenting plan and child support matters in a minor child’s best interest.
Mediation and the collaborative process are both private dispute resolution processes. In other words, they are both ways that parties can resolve their conflicts outside of court. Both processes also have trained professionals to assist the parties in resolving their disputes.
Collaborative divorce has its own statute and set of procedural rules. Mediation is governed by Chapter 44, Florida Statutes.
At a minimum, both parties and a mediator must attend a mediation. Often, one or both party has his/her own attorney attend as well. While it is not required for each party to have an attorney attend, the mediator can NOT give legal advice, parties often find it helpful to have an attorney attend to give recommendations and advice so they can make informed decisions.
Parties occasionally find it helpful to have other professionals attend mediation such as the a forensic accountant, a financial planner, or a guardian ad litem. If you wish to have someone attend mediation with you who is not your attorney, you should speak with your attorney before the mediation. Or, if you do not have an attorney, alert the mediator ahead of time.
Possibly. For example, Attorney Sarah E. Kay speaks Spanish and can conduct a mediation entirely in Spanish. If that happens, then the agreement must be written in Spanish. Then, it is the parties’ responsibility to have a qualified Spanish-English translator to translate the agreement into English for the judge to ratify or approve.
If you are the only non-native English speaker and the mediation is conducted in English, then, depending on your command of the English language, you may need to bring a qualified English interpreter with you to translate. You should consult with a qualified family law attorney before mediation to discuss if you should bring an interpreter to mediation. It is your responsibility to bring a qualified interpreter with you if you need one.
Mediators are impartial and neutral professionals who are dedicated to assisting parties to reach an amicable resolution if possible. Mediators are NOT decision makers and can NOT impose or recommend a resolution. They are facilitators.
A mediator’s primary function is to safe-guard the mediation process. This means that the mediator will be focused on conducting the sessions in a balanced manner. Mediators are also responsible to ensure that everyone at the mediation is behaving in a reasonable, non-adversarial, and non-coercive manner.
No, the two terms are not interchangeable. “Impartial” means that your mediator does not favor one party over the others. “Neutral” means that the mediator does not have a stake in the outcome of the case.
Every circuit court system in Florida has a mediation & diversion program. In that program, the court has either court employees who mediate or they contract with local Florida Supreme Court Certified mediators. Typically mediations occurring through the court’s mediation & diversion programs are limited to 2 or 3 hour time blocks. Normally, when using this system, parties are unable to choose their mediator. The pros to using mediation & diversion services include: mediations are available free of charge to persons who are deemed “indigent” by the court; the cost of the mediation is pre-set; and most court houses have greater security in place than private mediators. The cons to using mediation & diversion services include: the time-limit to the mediation, the inability to select the mediator, and it is not unusual for there to be limited availability of dates and times for the mediation.
Parties may choose to mediate outside of the court’s mediation & diversion program. with a private mediator. When privately mediating a conflict, the parties agree-upon the mediator. The benefits to using a private mediator include: the ability to select the mediator, greater availability with dates and times for the mediation, the ability to schedule mediations for more than 2 or 3 hour time blocks, and greater flexibility in the location of the mediation. The cons to using private mediation include: typically private mediation costs more than mediation & diversion services and typically there are fewer security measures in place than what is available at the court.
The timing of mediation will depend on the case. Mediation can happen before a case is filed with a court (called “pre-suit mediation”). Mediation may happen shortly after a case is filed. Mediation may be held after discovery (information and documents) have been exchanged. Or parties sometimes mediate immediately before a hearing. In some circumstances, parties mediate after an order has been entered. In some cases, parties attend mediation multiple times.
When and how o mediate is a strategic decision that you should discuss with your attorney.
Mediation can be used to address all types of conflicts. There are very few restrictions to the topics that can be mediated. However, due to safety concerns, great care must be used to mediate issues involving domestic violence.
It is quite common for judges to order parties to attend mediation at some point during a case. Many courts in Florida, including the 13th Judicial Circuit for Hillsborough County, automatically require parties to attend mediation before holding a certain types of hearings. It is not unusual for parties to be ordered to a second (or third!) mediation before the final hearing in their case.
Parties can request that the judge waive mediation requirements. It is up to the judge whether or not to grant that request. However, special consideration is given to requests to waive mediation when there is a history of domestic violence.
Very generally speaking, resolving a dispute at mediation is faster, cheaper, and often times easier than what is involved in litigating the case and less risky than asking the judge to decide. Parties normally have more control over the outcome when resolving the dispute at mediation. And parties are often times more likely to follow a mediated agreement than a litigated court order.
No. There are never any guaranteed outcomes.
Yes. Florida law states that all mediation communications are confidential. “Confidential” means that mediation participants can not disclose the communication to anyone other than the other mediation participants and that person’s attorney.
Yes. A party to a mediation also has a privilege to refuse to testify and prevent any other person from testifying to a mediation communication at a hearing.
Yes, some exceptions exist. They include: any written agreement that results fro mediation (because the agreement will oftentimes be presented to a judge for ratification or approval); ongoing criminal activities; mandated reporting of child abuse, abandonment, or neglect; or mandated reporting of elder abuse.
No. Never. Mediation is a voluntary process. That means there is no requirement on anyone to reach a full or partial settlement of their issues during mediation. If the parties do reach a settlement of some sort, it will be reduced to writing which all parties will sign.
When parties do not reach a full agreement during mediation it is called an “impasse”. It could be a full impasse when no agreement is reached or a “partial impasse” which is when the parties reach an agreement on only some of their issues.
In the event of a full or partial impasse, the parties will likely need to submit the remaining issues (the ones they did not agree on) to the judge for determination.
If there is only a partial impasse – for example if only a partial or temporary agreement is reached – the parties may wish to schedule another mediation in an attempt to resolve the remaining issues.
Any agreements reached during mediation are typically submitted to the judge for ratification or approval.
If the parties reach a complete, partial, or temporary agreement at mediation, then the agreement will be written up for the parties and their counsel to review and, once final, for the parties to sign. That agreement can then be presented to the judge presiding over the case so that a court order based on the agreement can be entered.
Kay Family Law PLLC prides itself on being prepared and ensuring that our clients are prepared.
If Kay Family Law PLLC is representing YOU, then your attorney will be communicating with you by phone, e-mail, and text regularly to discuss overall strategy of your case and how mediation works into that strategy. These discussions will include addressing what information and documents are needed before or at mediation. It is important to us that our clients be prepared to make informed decisions when appropriate.
If Sarah E. Kay, Esq., BCS is your mediator, then she will send both parties a letter ahead of time asking for some basic information to be provided to her before mediation so she can hit the ground running on the day of mediation and everyone can make as best a use of the time together at mediation as possible.
No. Rules of ethics prohibit mediators from serving dual roles. This is to preserve the neutrality and impartiality of the mediator.