MEDIATION FREQUENTLY ASKED QUESTIONS
What is mediation?
Mediation is a form of conflict resolution through negotiations facilitated by a specially trained and qualified mediator. The purpose of mediation is to reach an agreement that is the best possible solution for all parties involved in a disagreement. Our legal system, while the best in the world, is not equipped to handle many of the personal disputes that exist in the family environment. The mediation process allows the parties to avoid court and work towards a settlement that best meets their families individual needs.
How does mediation work?
The mediation session usually starts with the parties and their attorneys gathered in one room with the mediator. This is the opening session in which the mediator goes over the ground rules and explains the process. This is followed by each side, usually through their attorney, providing an overview of the case. This list of issues raised in the case is the basis for the agenda of the mediation. An example from a family law case would be an explanation by one side that this is long term marriage with three minor children and considerable assets and debts to divide. While the opening statement would usually be much more detailed, from this sentence alone, the mediator would understand that the following issues would have to be addressed in the mediation: parenting issues, support issues and equitable distribution. The mediator will speak with each side to confirm the agenda and perhaps discuss the order that issues should be addressed. Following the opening session, the mediation will often move to caucus. This is when each side moves to separate rooms with their attorneys and the mediator meets with each side separately to further delineate the issues and the positions of the parties. The mediator will then move between the two sides to try to bring about resolution to each issue on the table. In some cases the parties will return to one room to address issues best worked on together such as time sharing schedules for children or the division of specific pieces of personal property.
While there are specific rules that govern the mediator and the process, the mediation itself should be somewhat informal, flexible and comfortable. The parties and their attorneys will often dress more casually than they would in court. There is often lunch served or ordered in if the mediation is working through the lunch hour. At any time during mediation, if a party needs a break, they need only tell the mediator and a break or rest will be given. The goal of mediation is to ensure that all participants is able to work towards an agreement that will resolve all issues in the case.
Do I have to go to mediation? Can’t we just get a court date and get this done?
Mediation is almost always required before a trial date can be set. Our legal system has found that a mediated agreement is usually a superior resolution to issues then an imposed judicial decision. It is required in most family law case that every issue be presented to mediation before the court will grant hearing time. More importantly, mediation should not be looked at as simply a hoop that must be jumped through in order to have your day in court. Mediation is an opportunity for litigants to take a step back, take a breath, and looked for solutions that will better address the issues than can possibly be done by having a day in court. There are many down-sides to going to court. It takes a long time, sometimes many months or years, for a case to work its way through the court system. During this entire time the lawyers are doing their job and preparing from trial which includes depositions, discovery, motions hearings, and discussions with the client to keep them appraised of the progress of the case. This makes the legal process very expensive. It also involves a lot of stress to most people who are not familiar with the legal process and feel they have no control over the outcome of the case. Finally, when the day comes for the trial, there is always an element of unpredictability to the case. No attorney, no matter how good, can predict the outcome of a case at trial with any great confidence. If every trial resulted in predictable outcomes, there would be no need for appeals. Finally, when a case is resolved through the court system, the party that “lost” will often feel less invested in the outcome and will perhaps be quite bitter about complying with the judicially imposed order. In mediation the parties have an opportunity to” think outside the box” and reach solutions that are best suited to their case in ways that may not be available to a judge. Therefore it is best to look at mediation as an opportunity rather than a penalty. It is an opportunity to reach a solution faster, with less hostility, with both parties having a buy-in to the outcome and with less financial expense than pursuing a court battle.
Who is the mediator?
The Supreme Court of Florida has created a professional category of certified mediators. These mediators have received special training in the areas of law in which they practice such as family law, civil law, dependency, and appeals. Most mediators are former attorneys or judges who have chosen to work with litigants to resolve issues without the need for judicial intervention. These mediators have seen how expensive, time-consuming, and emotionally devastating the judicial process can be. They are committed to helping participants find creative “win–win” solutions through the mediation process .
The mediator is a neutral facilitator to the process. While she may be trained as an attorney, she is not an advocate for either side, nor is she a judge. The mediator will not evaluate the evidence and issue rulings. It is the mediator’s role to listen carefully to each side, to fully understand the issues presented and to explore with each side ways to resolve the conflict without the need of further litigation. It is also important to understand that, while the mediator may spend more time with one side or the other during negotiations, this does not mean that they have lost neutrality or are taking sides. This is usually an indication that the mediator is trying to reach a full understanding of one side’s position or is exploring options and resolutions that may be more complex. If at any time during the mediation you feel that the mediator has lost neutrality, you should discuss this with the mediator as it is important that all participants perceive the process as fair so that the outcome can be respected.
Is the mediation process confidential?
Yes, the mediation process is confidential. This allows participants to freely consider all options and be creative and seeking solutions. No party can compel the mediator to come to court to testify about offers made or issues discussed during the mediation. The parties should feel free to discuss openly and honestly all of the issues on the table and look for positive solutions without fear of the other side using the mediation process to beat them up in court. There are some exceptions to the confidentiality provisions of mediation and these will be explained by the mediator prior to the start of mediation. Often in mediation, the parties and the attorneys will caucus separately with the mediator. During caucus, the mediator will meet with each side separately to review their position, discuss possible solutions, and consider alternatives that the parties may not be comfortable discussing in the full group session. During these caucuses there is an added level of confidentiality. The mediator cannot discuss anything that is revealed in caucus with the other side without first receiving permission to do so. Again this allows open, honest and full consideration of proposals before they are articulated to the other side.
Should I bring my evidence to the mediation?
You should bring the information that you will need in order to meaningfully engage in negotiations to settle the case. This would include things like valuation of assets under dispute, amounts of debts under dispute, school schedules if parenting issues are on the agenda, etc. it is essential that both sides have done their homework, generally completed necessary discovery, considered their research, and are prepared to fully evaluate and settle the matter during mediation. However, bear in mind that this is not an “evidentiary” hearing. You will not be “convincing” the mediator that you are right and should therefore prevail. The mediator’s role is not to weigh any evidence or decide who is telling the truth. The purpose of the mediation is to work towards an agreement between the parties.
Where does the mediation take place?
Often the parties agree to hold the mediation at the offices of the mediator or some other neutral location. In some cases the mediation will take place at the offices of counsel for one side. In every case, the mediator will work to ensure that the participants are comfortable so that the mediation can proceed without distraction.
What happens if we reach an agreement during mediation?
Any agreement reached during mediation will be reduced to writing and signed by all of the participants. If there is a legal case pending, the mediator will file the settlement agreement with the court along with the mediator’s report of a settlement. If there is no legal case pending, the parties will each be provided with the settlement to reflect the terms agreed to by the parties.
What happens if we don’t reach an agreement during mediation?
This depends upon the situation of each case. If the court has ordered the mediation and no agreement is reached then the mediator will report to the court that the parties attended the mediation and that there was an “impasse”. This is all that the mediator can report to the court. There is no report given to the court of the discussion or the terms discussed during mediation. If the case was not already a part of litigation, then the mediator need not report the impasse to court. Often, even if the case terminates without an agreement, the parties may agree to continue the negotiations and the mediation may reconvene at a later time or the mediator may work with the parties for ongoing negotiations.
How much does mediation cost?
Professional mediators charge an hourly rate based upon their years of experience, advanced education and commitment to assisting each participate to reach a resolution to their dispute. The mediator charges for the hours involved in the actual mediation and any time spent in preparing an agreement or in follow-up negotiations if requested by the parties. The overall cost of mediation depends upon the amount of time involved in your case. Each case is different and therefore it is not possible to provide a flat fee or maximum amount for a mediation. However, one thing is certain, the cost of settlement is much less than the cost of rolling the dice and going to court.
Who has to pay for mediation?
Normally, the Court will order that each party bear half the cost of mediation. However, often during the mediation the parties will negotiate the payment of the mediator fees as well as other issues. As there is no guarantee that the allocation of the cost of mediation will be resolved during the negotiations, you should confer with your attorney or the mediator prior to the mediation if payment is an issue. The parties are expected to be prepared to pay the mediator at the end of the conference.
I have a domestic violence injunction in place, do I have to attend mediation?
This should be discussed with your attorney or the Court prior to the mediation. In some cases, the Court can waive mediation if there are dangers inherent in the mediation process. However, so long as the mediator is aware of the existence of an injunction, the mediation may be able to proceed if the parties and the Court agrees. In addition, certain precautions may be taken to ensure the safety of the participants, including holding the mediation at the court house or proceeding only in caucus.
Do I need an attorney for mediation?
It is not a requirement that both parties be represented by an attorney to participate in mediation. However, it is advisable that you consider engaging an attorney to participate in the process with you if you have not already done so. It is important to understand that, while many professional mediators are licensed as attorneys, they are not permitted to provide any legal advice when acting as a mediator. The mediator’s role is to be a neutral assisting with the negotiation of a settlement, not an advocate or provide legal guidance to either of the parties.
Copyright 2013 by O’Day Resolutions
Sharon O’Day, Esq.