Carmen R. Gillett is Certified by the Supreme Court of Florida as a Family Law Mediator
Mediation is the process by which the parties and their lawyers meet with a neutral party to discuss ways of resolving the issues at hand. Ideally, the mediator should be a lawyer well‑versed in divorce issues, or at least a Florida Supreme Court certified mediator. It is not a good idea to go to mediation until you are ready to prove your own case, and received all of your spouse’s relevant financial or other documents. (and looked into the arguments that your spouse is making in the case)
The mediator cannot force anyone to agree to anything, although the Judge can order you to go to mediation in good faith and cooperate. The mediator will meet with the parties together and separately to see if a compromise can be reached, or even try and straighten out a party who may be unrealistic in their demands or expectations. Retired Judges make excellent mediators as they may be able to project how the Judge on the case will rule on the different issues.
Sometimes, it’s just the idea of a neutral third party disagreeing with someone’s position that makes them re‑think it. If you can’t sell your idea to a mediator, why would you think the Judge will buy it? If an agreement can be reached, it is reduced to writing. It basically becomes a marital settlement agreement which is legally binding and can only be set aside in rare circumstances, such as where the other party misrepresented something important. The Agreement is then adopted by the Court into the Final Judgment of Dissolution of Marriage if the Court finds it acceptable.
For further information:
Go to www.flcourts.org
I’m going to Mediation, Now What?
PLEASE NOTE:
1. This document is for educational and informational purposes only; it is not intended to replace the need for independent legal advice.
2. There is a GLOSSARY at the end of this document which is designed to assist the reader.
- What is mediation?
- What happens if I don’t come to any agreement in mediation?
- What are some advantages to mediation?
- What is a mediator?
- What happens in mediation?
- Tips for how to prepare for mediation
- Frequently Asked Questions (FAQs) and helpful links.
What is mediation?
Mediation is a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person (called a mediator). A mediator is not allowed to decide who is right or wrong or to tell you how to resolve your dispute. In mediation, you can try to find solutions that make sense to you and the other person in the dispute to resolve some or all of your concerns.
While the goal is to try to work something out, you may decide it would be better for you not to come to an agreement. Sometimes emotions may be driving the dispute which can make talking to the person or party with whom you are in a dispute difficult. A mediator can assist you in easing the way for communication. The mediator is there as a neutral person to help you focus on solving your dispute; however, the mediator is prohibited from providing therapy, counseling or legal advice.
What happens if I don’t come to any agreement in mediation?
Mediation is used by the courts; additionally there are state and local agencies as well as individuals and corporations which use mediation. When it is used by the court, it is called a “court-ordered mediation.” If you are court ordered to mediation and you are unable to settle your differences, you will go back to court and the judge (or jury) will make a decision for you.
What are some advantages to mediation?
- Mediation provides an opportunity to talk with someone who is impartial.
- The issues in your dispute are not decided by someone else (self-determination).
- What you say in mediation is confidential.
- The mediator can help you overcome obstacles to communication with the other person or party in your dispute.
- Mediation agreements are enforceable.
- A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute.
- Mediation is not a trial nor an arbitration.
- Mediation can save time and costs.
- You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court.
- Mediation is an opportunity to gain a greater understanding about why the dispute arose.
- Mediation provides an opportunity to talk with someone who is impartial:
- The issues in your dispute are not decided by someone else (self-determination):In mediation, you are the “decision maker.” The mediator helps you discuss your concerns, but cannot make decisions for you.
- What you say in mediation is confidential:
Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act, sections 44.401 – 44.406, Florida Statutes). The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either a) the parties agree it will apply or b) it is mediated by a certified mediator. Although not required, sometimes the mediator may ask the parties to state in writing that they will keep everything confidential. The goal is to allow you and anyone at mediation and their lawyer, if any, to talk about legal and non-legal issues without fear of others (including the judge) hearing about it. While most things said during mediation will be confidential, there are some exceptions. (Three main examples of these exceptions are child abuse, elder/vulnerable adult abuse, or anyone saying that they are committing or planning a crime. If you are interested in all the exceptions, see section 44.405(4)(a)(1) – (6), Florida Statutes.A signed mediated settlement agreement is not confidential unless the parties agree it will be confidential and the law allows the agreement to be confidential. Instead, the agreement may – and in some cases MUST – be put in a court file.
- The mediator can help you overcome obstacles to communication with the other person or party in your dispute:
Even if you have already tried to talk it out or negotiate with the other or party, a mediator can help you and the other party listen to each other and keep you focused. A mediator is there to help both sides communicate and explore possible solutions. If you and the other party get stuck, the mediator can sometimes help restart the conversation in a new way and help everyone take another step forward.
- Mediation agreements are enforceable:
If you reach an agreement in mediation, that agreement must be put into writing and signed by the parties. The written agreement becomes a legally binding document (contract), which is enforceable by the court.
- A mediated agreement allows you and the other person or party to reach flexible solutions to your dispute:
Mediation provides you with an opportunity to be creative with your solutions. If both sides agree, you can reach a settlement agreement specific to your individual needs. Mediation is different from litigation (a trial), where the judge or jury makes a final decision. With mediation, both sides can “win,” this is called a “win-win” situation.
- Mediation is not a trial nor an arbitration:
Mediation is neither a trial nor an arbitration. In a trial, the parties present evidence and argument so a judge or jury decides the outcome of the dispute. Likewise, in arbitration, the parties present evidence and arguments so an arbitrator or panel of arbitrators decides the outcome of a dispute. In mediation, the mediator assists the parties as they talk about their dispute to help them find and explore mutually acceptable resolutions of their dispute. If you reach an agreement at mediation, you do not have to go to trial or arbitration.
- Mediation can save time and costs:
Since mediation is a discussion between the parties, it can be much quicker than the formal trial process. Thus, it may also cost less than going to court – in both dollars and stress.
- You know what you have agreed to in mediation instead of gambling with what the judge or jury may decide if you go to court:
If you resolve the dispute in mediation, you are not gambling on what the judge or jury might decide. In a trial, the final decision will be made by the judge or the jury (if there is a jury). It is uncertain what decision will be made at trial, but you will be bound by that decision whether you agree with or like the outcome of the trial. At mediation, the parties make the decisions.
- Mediation is an opportunity to gain a greater understanding about why the dispute arose:
In mediation you are talking with each other, the mediator, and your attorney if you bring one. This interaction promotes a better understanding of the actions that lead to the conflict. Sometimes when the parties understand the “why” of the other person’s actions, it helps create a desire to resolve the dispute.
What is a mediator?
A mediator helps you talk with the party with whom you are having a dispute. The mediator does not make decisions for you. The mediator is a neutral and impartial guide to help you come up with possible solutions, stay on track, and clarify areas of agreement and disagreement. The mediator may help you and the other party see the conflict from each other side’s point of view.
Many kinds of people can be mediators: mental health or business professionals; attorneys; educators; and others. To become certified by the Florida Supreme Court, a mediator must meet many requirements. There are ethical standards for mediators adopted by the Florida Supreme Court. See the Standards of Professional Conduct in Part II of the Florida Rules for Certified & Court-Appointed Mediators.
A mediator is not there to provide therapy, counseling, business or legal advice. While mediation is a good place to recognize the emotions that may be driving the dispute, the mediator is there as a neutral to help you focus on resolving your dispute.
What happens in mediation
Court-ordered mediation must begin with an introduction by the mediator explaining the process and the role of the mediator. Among other things, the mediator should explain that the parties make the decisions, not the mediator. The mediator’s introduction is usually followed by an opportunity for you and the other party to describe your concerns. If your lawyer is with you at mediation, these opening remarks may be made by you, your lawyer, or both of you. After these initial procedures, how the mediation is conducted varies. The mediator usually will meet with both parties together to discuss the issues to help you work out your differences. The mediator may also meet with each party privately. This separate meeting is called a caucus. Generally, unless you give the mediator permission to repeat what you say in caucus, the mediator is prohibited from sharing what is discussed.
If you are represented by a lawyer, you and your lawyer will decide how the two of you will interact during the mediation. Some lawyers instruct their clients not to talk during mediation. If this is your decision with your lawyer it is fine; however, it is important for you to know that you are allowed to speak to the mediator at any time.
Eventually, the mediation will end in one of three ways, either: 1) the parties reach an agreement as to some or all issues – all parties (and their lawyers if present) must sign the agreement; 2) the mediator declares an impasse (because you, the other party, or both are unwilling to continue discussing resolution); or 3) the mediator, with the parties’ consent, continues the mediation session by adjourning for the day. If the mediator declares an impasse as to some or all issues, then you and the other party will have to go back to court to have the judge or jury (if there is one) decide your case.
Tips on How to Prepare for a Mediation
Before you attend a mediation, there are a few things you can do to help prepare yourself and to help make the mediation more beneficial to you.
1. Get legal advice
Because a mediator cannot give any legal advice to any parties, if you are not currently represented by an attorney but you have legal questions about your case (including what your case may be worth or what to accept as a “good” settlement), you should contact an attorney before the mediation, so you may make an informed decision about settling your case. If you cannot afford one, Legal Aid or The Florida Bar may have a program to assist you.
2. Get organized
Go over all of the information that you have and organize it. It may be helpful to list events in the order in which they occurred. Gather any documents about your issue and put them in a folder to bring with you to the mediation. If you have an attorney, talk to your attorney about your case and mediation. Your attorney may be able to provide you with even more information on what to do during the mediation
3. Come prepared:
Arrive at the mediation on time. Be prepared to talk to the other party in the dispute. Even if you have had problems talking to the other party on your own, the mediator is there to help with communication. Be aware of the security regulations in the building where your mediation is to take place.
4. Understand the dispute:
Get the issues straight in your head. If it helps, write the issues down. Think about which issues are the most important to you as well as which issues are least important. In addition, think about what may be most and least important to the other person or party.
5. Set goals:
Think about what you really need to resolve the case or dispute. Set realistic goals to guide you in your decision making, but be flexible because you may get new information at the mediation that could change your mind.
6. Get to the mediation on time:
It is important that you arrive at your mediation on time. There are things you should consider in order to be on time – one item is parking. At many buildings, it is difficult to park. Find out in advance about what parking is available and the cost. You may have to pay fees prior to appearing at the mediation or in court. Arrive in enough time to pay your fees.
7. Arrange for childcare:
If you have children who must be cared for, you should arrange for a babysitter. Often courts and other mediation meeting places do not have anyone to care for children and children are generally not allowed in a mediation.
Frequently Asked Questions (FAQs) and Helpful Links
More information is available on this website. If you choose to get more information about mediation from the internet, please be advised that other states have different rules and only the Florida rules apply to mediation when you are mediating in Florida courts.
You do not have to have an attorney at mediation. However, it may be helpful to consult an attorney prior to going to mediation or to have an attorney with you.
Whether someone may mediate for you depends on the connection that person has to either the case or the people involved in the mediation. Because a mediator must be both neutral and impartial, the mediator should not have any close connection to anyone in the dispute or anyone participating in the mediation. If the mediator does have such a close personal or business connection, (examples: parent, employee, landlord) the mediator may not mediate that dispute. If the connection is not close, then the mediator must disclose the connection. If you recognize any connection or relationship to the mediator, you must disclose the connection as soon as you are aware of the connection. Once the connection is disclosed, if all parties agree, the mediator may serve.
Non-parties (examples are: friends, relatives, advisers.) may attend the mediation ONLY if all parties agree. If all parties do not agree, non-parties may not attend the mediation. Therefore, it is best to ask the mediator about bringing someone with you before you go to the mediation. Anyone who attends a mediation is bound by confidentiality. See “What are some advantages to mediation?”
Generally, the rule is that people who attend a mediation may only discuss what is said in a mediation with others who attend the mediation or their attorney.
At mediation you can resolve all of your issues, some of your issues, or none of your issues. If a full or partial agreement is reached, all resolved issues must be written down and all parties in the dispute and their attorneys (if appearing at the mediation) must sign. If, there is only a partial agreement that means there are still issues to be resolved by the court. Those issues will be addressed in a trial unless they are settled after the mediation but before the trial begins.
If you do not reach an agreement at your court-ordered mediation, the mediator must report to the court the fact that no agreement was reached. The confidentiality rules still apply. Even if you do not reach an agreement during the mediation, you may continue to try to settle your case after mediation. If you settle your case after mediation but before trial, contact the court to ask what procedures you need to follow.
The parties should work together to select a mediator. If you cannot agree on the selection of a mediator, the judge will select a Florida Supreme Court certified mediator for you. If you object to the mediator requested by the other party or appointed by the court, there are procedures to deal with your objection. If the parties cannot agree, the court will make the final decision.
Please note: in some cases, you are not able to select your mediator. For example, if you are using a court program, such as in small claims and family court, the mediator may be selected for you by the court or the court program.
The cost of mediation depends on many factors. In some cases (example: small claims) the court provides mediators for free. In family cases, the amount charged depends on whether the court program provides the mediator or the parties are selecting their own mediator. If the program provides the mediator, the amount charged depends on the parties’ combined or joint income. [See section 44.108(2), Florida Statutes]. Many circuits provide dependency mediation services at no charge to the parents. Check with the mediation program in your circuit to see if such services are available. Parties who select private mediators should expect to pay market rates. The ethical standards for mediators require that the mediator provide a written explanation of any fees and costs prior to the mediation. The mediator may have minimum fees and charge for travel time, postponements, cancellations, or other expenses. (See rule 10.380, Florida Rules for Certified and Court-Appointed mediators). If the parties do not select a mediator, the court will select a mediator and will set the fees the mediator may charge.
The length of a mediation will depend on many factors. Mediation may range from a half hour to a day or several days, depending on the complexity of the case or number of parties in the dispute.
In cases where the mediator is not appointed by the judge, when choosing a mediator, you may wish to consider any number of factors, including the mediator’s background, training, and experience with mediation or with your type of case. You may also wish to consider the fees the mediator proposes to charge. See also Question 9. above.
The Mediator Database of all mediators certified by the Florida Supreme Court can be found on this webpage. Click here to go to the database. This may help you find a mediator in your area; however, it is not the only way to find a mediator. If you have a lawyer, the lawyer may know many mediators; you can also ask friends or trusted colleagues; or you can visit the websites of statewide organizations.
If you believe that a mediator has violated the ethical standards for mediators, you may file a grievance with the Dispute Resolution Center.