The point of going to court is to have a judge resolve a dispute between two parties. Often, the issues at stake are so textured and interrelated that it would not be worth the court’s time to resolve. This is especially common in family law cases where emotions typically run high. In these situations, the court can refer the case to mediation.
The mediator can be someone who is agreed to by the parties or appointed by the court. The first dispute is often “who will pay the mediator.”
The court will typically review the parties initially filed financial affidavits to determine the proportion each party will be responsible for. For example, if one person makes $ 40,000 and the other person makes $ 60,000 you should expect the court to order that the fees be divided 40/60. If you disagree with this award of mediation payment, you will have 15 days to file an objection. Family Law Rules of Civil Procedure 12.740(c)
Naples, Florida has dozens of private mediators available for hire and Collier County has its own mediation program available. If the court does not appoint a private mediator and assigns the case to the circuit court’s mediation program the charges shall be as follows:
“(a) One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year;
(b) Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000;” Fla. Stat. Sec 44.108.
If the court recommends mediation you must go to mediation you do have to attend mediation or you could possibly be held in contempt. But, you have no obligation to participate in mediation. Your mere attendance will have satisfied the order. Family Law Rules of Civil Procedure 12.740(d)
The mediator and the parties are required to complete mediation with 75 days. Family Law Rules of Civil Procedure 12.740(e)
If an agreement is not reached, the mediator will submit a report to the court and the parties without comment or recommendation so as not the prejudice the court in its further decisions. If the parties agree, “the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.” Family Law Rules of Civil Procedure 12.740(f)(3)
If an agreement is reached the mediator the agreement will be reduced to writing (usually by one of the lawyers), signed by both parties and then entered with the court.
What happens if you change your mind after the mediation? The rule used to be that you had a 10 day period where you could take it back but now that rule has been eliminated. It appears that sometime between signing the agreement and the entry of the agreement the agreement becomes permanent. This lack of clarity in the finality of a mediated agreement creates a very fine line between the loose atmosphere of “we’re just discussing it” in mediation and when the final documents actually get filed. This is all the more reason to only have the agreement prepared and filed by your attorney. You should even have the agreement entered in the court where the parties swear an oath that the agreement is final.
For mediation to work, some level of trust is required between the parties. If a divorce action has been filed, however, trust is usually completely out the window. This is especially true if there has been adultery and even more true if there is an ongoing extramarital relationship. In these cases, just push through mediation and move along to the formal discovery process so you can discover what you assume your spouse would never tell you outright.
Contact my office to learn more about mediation. While I don’t provide mediation services, I would be happy to advise you of your rights and refer you to mediator David Schnitzer. He’s just a short 15 minute drive from my office in Naples, Florida.