Interviewer: What role does mediation have in the practice of family law?
Wendy Doyle: What happens is in either a paternity, which is under Chapter 742, or a regular divorce case, which is under Chapter 61 the parties are required to attend mediation before usually any substantive hearing. This would occur after the parties have at least a financial affidavit filed.
The State of Florida Strongly Encourages Mediation to Resolve Cases and Offers Reduced Fees Based on Income
Here in Florida, what they want you to do is try to have the case resolved through mediation. If the parties have a combined income of under $50,000, then they can pay a reduced fee. If you need the court provided services, then you pay $60 each fee for the mediation.
If they have a combined gross income of under $100,000, then they have to pay $120 fee each party. If they earn more than $100,000, they have to use private mediation.
The Parties Can Opt for a Private Mediation
The parties can also elect to have a private mediation. You can pick whoever you want to, somebody who has more experience in the family law realm. I do that for high ticket divorce cases where there’s a lot of access, sometimes on very complicated cases. Their rates can be as much as an attorney’s, possibly $300 an hour. Both parties usually split the cost or the bread-loser pays.
During Mediation, the Parties Initially Speak in Separate Rooms; All Discussions Are Confidential and Cannot Be Used in Court
When you go to mediation, it is typically a 4 hour session unless it’s a complicated case. We’ll usually use about an 8-hour mediation. I don’t like to do meditations in the same room. I always require that everybody speaks in separate rooms. That way everybody can feel comfortable in stating their positions.
It’s confidential so anything that’s discussed in mediation can’t be brought into a court. They’re confidential settlement negotiations. The reason I like to have them in separate rooms is so people don’t feel intimidated. It goes back and forth. We try to get the case resolved. If we get it settled, then we type up a full mediation agreement.
If There Are Children in the Family, Florida Requires the Drafting of a Parenting Plan as a Component of the Divorce Case
If there are children involved, we have to devise a parenting plan. This is because in Florida we have a separate parenting plan that everybody has to enter into. It details everything to travel, who’s picking up the child or children, where it’s going to happen, what form of communication between the parents or communication between the children is allowed. Parenting plans are lengthy and very detailed documents.
After a successful mediation in a divorce case, you have to have a 15 minute uncontested final hearing. That’s if you have a settlement agreement only.
The Goal of Mediation Is to Resolve Issues in a Divorce without Going before a Judge
We attempt to utilize the mediation process. If we don’t come to an agreement, then you can do a temporary relief hearing, if it’s necessary. Also, sometimes at mediation, you can have a temporary agreement. We may not have the entire case resolved, all the issues; but we can sometimes arrive at a temporary agreement, which will prevent the case from having to go before a judge.
Less Uncertainty: Mediation May Better Resolve Issues to the Satisfaction of Both Parties, without Depending on a Judge’s Ruling
I think an advantage of mediation, as opposed to going to court is that I can’t always predict what a court’s going to do. I pretty much know how the judges are going to rule on issues on the fact patterns. I can pretty much tell what’s going to happen. Experienced attorneys usually can. However, we can’t guarantee results.
Sometimes we get a temporary agreement then we can move to trial eventually. If not temporary agreement, then you can go to a temporary relief hearing and then move to trial. That’s the whole point of mediation, taking control of the outcome.