Mediation is a process used to help people reach agreements. In this process, a neutral mediator works with the parties to discuss all of the issues related to their family conflict, to explore possible options for settlement, and to identify solutions that best meet the needs of the parties, and their children, if any. The goal of Mediation is to reach an amicable settlement of the issues presented, so to avoid protracted litigation.
Is Mediation required?
Most Florida Courts require the parties to a family law case to attend mediation at some point. When the mediation must be done varies between the jurisdictions. Although, it is becoming increasingly more common for Courts to require a mediation before entertaining any Motions or conducting any hearings. Thus, many people are now opting to mediate before any petitions are filed.
When can Mediation be done?
Mediation can take place at any stage in the conflict. Some people decide to attend mediation before a lawsuit or petition is filed, while others mediate after litigation has commenced.
What is the role of the Mediator?
The Mediator acts to encourage a resolution of a dispute without dictating what the resolutions should be. The Mediator's sole purpose is to help the parties reach a mutually acceptable settlement. Mediation is not Arbitration. Arbitration involves presenting the facts of a case and the parties' arguments to a panel. The panel then renders a decision in the case that may be binding on the parties. At the Mediation Conference, the Mediator does not have the authority to decide issues or to "force" a party to settle.
Who participates in Mediation?
Mediation can include different combinations of participants at different times. At the minimum, the neutral mediator meets with the two parties to the case, but the attorneys for the parties may also be present. Other professionals who can provide information to help with decision making may also be present.
Whether the attorneys are present or not depends on several factors including the subject matter being addressed, the comfort level of the attorneys with the process, and the comfort level of the participants with the process. At the beginning of the mediation process, it may be a good idea for the mediator to speak briefly with the attorneys, and then if all are comfortable, have the mediator meet with the parties only at first. Sometimes, the attorneys are most comfortable if the mediation starts with the mediator and the parties only, and focuses on parenting issues and developing a specific parenting time schedule. Later, the attorneys may or may want to participate in mediation when financial issues are discussed. Whether they are present at mediation or not, attorneys typically each meet with their own clients outside of mediation and provide advice as to the options the client may want to consider for settlement, and the range of possible legal outcomes if the case does not settle at mediation. Many attorneys will also be available for consultation by phone during the mediation if needed even if they are not present. Finally, attorneys should review any written agreements prior to finalization to assure that the language used captures the terms as agreed.
Other professionals who participate may include child development professionals, to provide information to the parties, or financial professionals, such as pension or real estate experts.
What happens at the Mediation?
The Mediator is in control of the Mediation Conference and sets the rules and procedures to be followed. Normally, the Conference begins with an explanation of Mediation presented by the Mediator. The parties then are usually given an opportunity to explain the facts of the case and their positions. Systematically, the Mediator guides the parties through the issues in an attempt to reach an agreement.
At times, it may be necessary for the Mediator to speak with either or both parties privately. By choosing to meet privately with one side, the Mediator is not adopting or rejecting that side's position. It simply means that the Mediator needs to gather additional information some of which that party might want to keep confidential. All communications made during the Mediation Conference are confidential and inadmissible as evidence in any subsequent legal proceedings unless both parties agree otherwise.
The Mediator may adjourn the Mediation Conference at any time and may set times for reconvening the adjourned Conference. The Mediation will be adjourned if the parties reach an agreement or come to an impasse.
The Mediation Conference may last only a few minutes or may extend for several hours depending upon what issues are presented. As such, you should make any necessary arrangements, so that you can spend at least 4 hours and preferably longer, at the Conference.
Typically if an agreement is reached as to any matter, the agreement is reduced to writing, signed by the parties and their attorneys and filed with the Court. In most cases, any agreement signed by the parties during a mediation is binding and cannot be altered or changed at a later date. If an agreement is not reached, typically all that is reported to the Court is that the parties attended but could not agree to a settlement.
Do I need an attorney to represent me at Mediation?
As with all legal proceedings, you can always elect to represent your self at mediation. Since significant legal rights are at stake, it is always advisable to confer with an attorney prior to signing a settlement agreement. However, if you are comfortable representing yourself and have a good understanding of the law and the facts of your case, you can proceed to mediation without an attorney.
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