Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys spanning the entire Tampa Bay area and Orlando.
In this edition, we will be discussing mediation – one of the most important processes in family law. As you will see our panel of attorneys are passionate about how successful it can be for people dealing with some of the toughest decisions in their lives. Through teamwork with your attorney and the opposition, mediation can keep the major decisions you have to make about your future in your hands and out of an unpredictable court system.
We talked about these issues with a legal team gathered for the day. Here is what we discussed:
Why is mediation necessary?
First, I just want you to know that I am a Florida Supreme Court family law mediator which means that I have gone through certain training to help people through the mediation process. Mediation is very important for two reasons. One it is required in most cases before you go to trial. The courts generally require you go to mediation unless there is some good reason you show the court as to why mediation is not necessary, such as in domestic violence cases where two people should not be near each other. The other reason mediation is important is that it works. If you come to mediation, you understand the process, understand what it can accomplish, and have an open mind about the process, mediation will work 100 percent of the time. It’s when people do not come to mediation with an open mind, they do not want come to an agreement, but only come because the court mandated it. So they do it, but they are just going through the motions, so they are not really in the mediation process. If you are in the mediation process, you will have much more input on your future as opposed the court making those decisions for you.
Mediation is an incredibly valuable thing when it comes to saving money for the client. In preparing a case, there is a lot of work that goes into the front end of case. So if I see there is an avenue where a settlement can be reached through mediation I always look to pursue that because in the end, it will cut down on the time and work that will be needed if you are going to court. That creates more money that a client gets to keep in their pocket. So one of the things I try to achieve in mediation is to avoid unnecessary fees to the client.
Since I am most likely going to be ordered to do it, what can I expect when I enter mediation?
You have one party who will be with their attorney, and you have another party who will be with their attorney. Then you have the third party who is neutral – who is the mediator. That person is not someone who makes decisions for either party rather that person talks to the parties to try to find some common ground to find an agreement. Sometimes the parties will be in separate rooms if the mediator or attorneys don’t think it will be productive for them to be in the same room during the process. But that is not always the case. Some people are more amicable and there can be some benefits to having the parties in the same room to get everything out on the table as to what people are seeking. And sometimes the parties can even collaborate a little bit amongst themselves during mediation.
So, the typical scenario is I will be with my client in one room and opposition would be with their client on the other room, and the mediator shuttles back and forth. To put it bluntly, it’s horse trading. I will tell the mediator this is what we would like to propose. And then the mediator goes into the other room and indicates to the other side what we are looking for. And so, the idea there is hopefully there is some common ground and people can agree. At some point, the hope is there is a full agreement and the mediator begins to draft a settlement that works for both parties. Sometimes we only get a partial agreement, sometimes we agree to disagree, but a good mediator will not milk the case. They will get to a point where they will decide there is not much I can do, I have tried everything and it’s going to have to go to court. Obviously, going to court is a very expensive and risky proposition.
Who are mediators?
Mediators are great professionals, very often attorneys who are not involved in the case making them an unbiased third party. They are not there for one party or against one party, and most I think start with the issues they think can most be resolved quickly. In any giving case, you can have numerous issues. Most good mediators will begin by coming to an agreement with the issues that are not in dispute and then focus on the other issues. Very often we use what’s called the caucus method. It is usually counter-productive to put the parties in the same room, inevitably looks are passed and it digresses quickly.
Bruce, you mentioned problems that can arise in mediation. What are some areas where people tend to disagree?
By far, disagreement over child-time sharing can stall things the most. The mediator will float some trial balloons to the parties. How about if your spouse agrees to this, will you agree to give in on another issue or will you agree to something that sounds like a reasonable proposition? The other most common disputes are over money. Most times a judge is going to come to some kind of equitable distribution, 50/50 if you will, but many times that is very difficult for people to accept in mediation. They may read something on the Internet or get bad advice from a family member and think they are entitled to something different than an equitable distribution. Sometimes its principle, sometimes it’s just not based in logic. Unfortunately, they may leave the process thinking they have won and the other side lost by the end of the mediation, so we try to avoid that. And I think most mediators try to avoid that scenario because it’s not about that. In the end, you will find yourself in court and it won’t take the judge long to decide who gets the boat for example, and you may come out on the losing end of that because you couldn’t come to an agreement on who gets this or that before it got to that critical point.
What happens if someone refuses to make an effort during mediation?
Parties and their attorneys are expected to act in some kind of good faith to move a case forward in mediation. In one of my cases, we went to mediation three times and the husband failed to make a counter offer and that is not handling the case in good faith. There wasn’t even ‘no we are not accepting your offer.’ It was ‘no we’re not settling and we’re not telling you what we want and we are not telling you what we don’t like about your offer. We’re just not settling.’ There’s an expectation of good faith. Part of sanctions and attorney’s fees is how much did you prolong the case unnecessarily? How much to did you engage in the frivolous? And if you are not working in good faith to resolve the case, the court frowns upon that an often penalizes someone as a sanction. Sometimes you reach impasses where you have had so many counters but there’s usually at least something back and forth. There’s not a hard-pressed rule to it but there’s a professionalism rule and there are attorney’s fees attached to it if you don’t follow that rule. In theory, if you are court-ordered to attend mediation you can show up, sit down, and then walk right out. That happens sometimes. In can happen especially in relocation cases where that is the last thing in dispute and there is an objection to it and you know the other side is not going to allow the other side to take their children to another state. You know something like that is going to trial. And the courts are not going to consider that behavior to be bad faith because it’s one issue and there is a reason you are taking it to court. But when you are talking about an entire divorce where there are numerous assets and liabilities and you can’t even agree on who gets the couch and who gets the painting. That looks bad. Then the judge starts wondering why that is the case, why do I have nothing?
So Jeana, if participation is stressed do I have to worry about what I talk about in mediation coming back to haunt me in court?
No that is one of the things about mediation that makes it so successful. Mediations are confidential and you cannot discuss what is said in those meeting. It was created that way to protect the confidentiality of the terms of the settlements being offered so you are not held to that standard at trial if you otherwise don’t settle because they don’t want to hinder people from making creative offers to get to a settlement. And if all the settlement offers come out at trial people are not going to be as open to negotiating.
How big is the success rate for mediation?
I was a Florida Supreme Court certified mediator for many years and it was very beneficial because I actually saw the mediation process from the other side, not just as an attorney. The majority of cases are solved at mediation, actually 80 percent are completed at mediation. With that kind of success rate, it is really an invaluable process for people settle their what can be a painful situation they are in and move on with their lives.
Is mediation a mechanism to allow parties better control as to the outcome of a divorce?
Mediation is a great tool for individuals who try to resolve their case absent litigation. It offers you the chance to sit with a third party to discuss the issues and come up with a resolution short of letting a judge – who by the way doesn’t know you and is not going to remember you five minutes after you walk out of the hearing – decide what happens to your life. You can be very creative in mediation. Judges are very limited as to what they can do. Statutes drive what they can do. You as individuals can come up with the plan that may be way outside what a judge can do and it will be something you will be more apt to be happy with because you came up with it on your own.
Sounds to me like it is a really good thing that everyone goes to mediation during their case. As usual, all of you have our appreciation for sharing your “pearls of wisdom.” It is always great to get a group of experienced attorneys together and to watch them brain storm. That wraps it up for today. Thanks to the Ayo and Iken legal team for pitching in today. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !
Our specialized content, video, and other informative media are based on input from Ayo and Iken team members, outside guests, former team members of Ayo and Iken, independent journalists, and subject-matter authorities. The opinions expressed do not necessarily reflect the official position of Ayo and Iken. Attorneys that are not current team members at Ayo and Iken may be reached through their member listing on the Florida Bar website: www.flabar.org