What to Expect in Florida Family Law Mediation
Posted in Florida Family Law on July 18, 2017
Every family law case in Florida will be resolved – most contested cases are resolved by Florida mediation process. The Florida supreme court has guidelines for circuit court judges regarding the length of time that they would like to see cases resolved, however that may occur. Family law judges are overwhelmed with cases and need to move them along. Unless yours is an uncontested matter, meaning that you have reached agreement on all issues before plunking down your $400 + for the privilege of filing a lawsuit in Florida, your case will go to mediation. Yes, there are instances when cases are resolved prior to mediation but they are few and far between. Trying to resolve a case without going to mediation is generally a waste of time and money. Billable hour lawyers love to try because, well, they charge by the hour; every minute talking, preparing, reviewing, responding, etc., etc., leads to another bill. The process generally fails because people simply don’t want to resolve issues until they are compelled to sit at a table with the other party, discuss the issues and try to figure out a way to get them resolved – MEDIATION.
Mediation is a settlement conference, period. Nothing more or less. Most courts routinely enter an order compelling the parties to go to mediation. Don’t even think about asking the court to excuse you from mediation as it’s not going to happen. The one exception from my perspective as a family law trial lawyer is a relocation case. Most family law judges will tell you that a request for relocation is one of the only family issues that really does require a trial. I routinely ask to be excused from mediation in relocation cases and that request is granted more often than not. That said, divorce, paternity, modification will all be ordered to mediation prior to being set for trial. Yes, don’t even ask most Florida judges for a trial/final hearing date unless and until you complete mediation.
Courthouse v. Private Mediation
There are many mediators ready, willing and able to assist the parties in their ongoing effort to resolve some or all of the issues in a case. Most counties in Florida have mediation offices at the courthouse. To use the courthouse mediation office, combined incomes of the parties, regardless of the type of case, cannot be over $100,000.00 per year. If combined income is between $50,000.00 – $100,000.00, cost is $120.00 per session; under $50,000.00, $60.00 per session. The cost is usually divided between the parties unless one has asked to be excused from paying the fee due to financial hardship. If utilizing the courthouse mediation program, no choice in selection of mediator with rare exceptions. You get who you get. I can tell you this – my experience with courthouse mediation offices throughout the estate is that most are excellent and work hard to assist the parties. Very rarely have I had a bad experience with courthouse mediation folks. One drawback of courthouse mediation is scheduling – they are busy and it may take a couple months to get scheduled.
If the combined income of the parties is more than $100,000.00, private mediation is required. If going the private route, the parties will need to agree on who will mediate. Generally speaking, it matters not who mediates the case. If my opponent does not agree with who I suggest (my choices are dependent on mediator’s fee and success rate) I will let him choose anyone – makes no difference because mediator is not a decision maker; merely a conduit between the parties to help move the case along. If I start a mediation early morning and the first question from the mediator is “what do you want for lunch” that will be my last mediation with that person. My goal is simple, get my client’s case resolved as quickly and cost effectively as possible – not interested in lunch. Moreover, rarely does a case require more than 2-3 hours. If settlement is not imminent or pretty darn close after 2-3 hours, we’re packing up and going home. Remember, everyone in the room, except me and my client, is watching the clock – more time = more $$$$$ for the mediator and lawyer. Private mediation fees run from $200 to whatever the parties are willing to pay per hour.
The Mediation Process
For my clients, preparation begins from day 1 of a contested case when we discuss the issues involved in whatever type of case you may have. We will discuss the goals we are trying to achieve considering the facts and the applicable law. Every substantive conversation with the client, witness or opposing counsel is geared toward getting your case settled, period. When mediation time arrives, you should be prepared for every aspect of mediation and I do mean every aspect. I generally appear at mediation electronically with video being my favorite medium. Why? Cost of course. My live mediation fee is more than appearing electronically? Unless there is some compelling issue that requires a live appearance, save your money.
The first order of business is the mediator’s introductory remarks. They will explain who they are, their qualifications (mediators are all certified by the Florida Supreme Court) and why mediation is a good process; it really is. As the mediator will tell you, it is your opportunity to take control – have some say – in how your case gets resolved. If not, a judge who knows nothing about you, your family or your situation, will decide for you. Most people would like to have a say in the process.
The mediator will then ask both parties to make a brief statement about the issues and what they are hoping to achieve. Regardless of the case, this opening statement should take no more than 2-3 minutes. It’s not a trial and there is no judge or jury. It’s an informal settlement discussion. Everything that’s said is privileged – cannot be repeated out of mediation. Some lawyers try to intimidate the other side with grandiose statements and arguments; waste of energy.
The parties will usually separate (i.e., caucus) and the mediator will do their best Henry Kissinger imitation and do some shuttle diplomacy – go back and forth between the parties in an effort to get them to move to a “middle ground”, a place where each side feels that it is in their best interests to settle rather than run the risk of the unknown by going to court. We make our position known right away. Yes, there is always a bit of room to negotiate but for the most part we present our almost best offer right from the start. Saves time, money and confusion.
If some or all of the issues are resolved, the mediator will prepare an agreement on the spot for the parties to sign. It will be filed and a hearing set soon thereafter for it to be ratified and made an order of court. If some or all of the issues are not resolved, the mediator will declare an impasse to let the court know that the case has not been resolved, period. The court will never know why or the content of any of the settlement discussions.
I can tell you this: when the other side leaves mediation without settling, it’s generally because the lawyer has done poor job preparing their client. In order to save face with the client, they will put on a show by pounding the table and leaving. The “we’re going to trial” declaration is perfectly fine. Judges are reasonable people; they will listen to the facts, apply the law and make a decision. Chances are, it’s going to be pretty darn close to what we offered to do at mediation.
Steven D. Miller, P.A. Success Rate
The success rate at mediation for Steven D. Miller, P.A. is about 95%. Here’s why: a good lawyer should be able to tell you within reasonable certainty what the outcome of a case will be whether it is settled today, tomorrow at mediation or a final hearing in a year. It’s not rocket science. Most lawyers just don’t tell their clients for fear of losing the ability to charge for every email and phone call. Keeping clients in the dark or “promising” results they know will never happen keeps clients happy but only until the money runs out or they figure out what’s really going on. Money gone, billable hour lawyer gone and client left holding the bag, the lunch bag.
“When it’s time to leave, or mediate, call Steve.”