58 th UIA CONGRESS Florence / Italy October 29 November 2, 2014 FAMILY LAW COMMISSSION Friday, October 31, 2014 Family Law Mediation and the Role of Today s Family Lawyer Family Mediation in Florida Donna L. Draves (The Draves Law Firm, P.A.) 120 E. Concord Street Orlando, FL 32801 USA Tel: 407-423-1183 Fax: 407-841-6746 dldraves@draveslawfirm.com UIA 2014
FAMILY LAW MEDIATION IN FLORIDA In 1988, the Supreme Court of Florida directed the county and circuit courts to establish mediation programs. Before any case can be tried before a judge or jury, the parties must fulfill the mandatory mediation requirement. A case cannot be set for a trial or final hearing until the mediator declares an impasse. In Florida, family law cases are heard by a judge or magistrate (not a jury) in circuit court. Florida is considered to be on the cutting edge when it comes to Alternative Dispute Resolution. As of May 31, 2014, there were 6,070 certified mediators in Florida, 2,212 of which were certified Family Mediators. I have been practicing law since 1977 and have been certified by the Supreme Court of Florida as a Family Mediator since 2001. I am providing you with a copy of the Model Standards of Conduct for Mediators which were updated and approved by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution in 2005. These Model Standards are referred to by all mediators throughout the United States; however, each state is different when it comes to passing legislation and promulgating rules. FLORIDA SUPREME COURT CERTIFIED MEDIATORS Please see the attached guide How to Become a Florida Supreme Court Certified Mediator for details. Please note that there are different requirements for mediators for county court, family court, circuit court, dependency court, and appellate court, but all of them require the successful completion of a Florida Supreme Court certified training program in the specific area. For our purposes, you need only refer to the requirements for Family Mediators. In order to maintain certification, all certified mediators in Florida are required to comply with the Continuing Mediator Education (CME) reporting requirements. The CME Reporting Form must be completed every two (2) years and, commencing in January 2015, additional proof must be provided. For example, if you attend a live program, you must provide a certificate of attendance and a copy of the agenda and/or outline of the course that provides enough information and detail to evaluate program content. Ethics hours specific to mediation and seminars on domestic violence (for Family Mediators) are also required. The Dispute Resolution Center (DRC) located in the Supreme Court Building in Tallahassee, Florida carefully monitors all certified mediators. MEDIATION RULES I have provided you with Rules 1.700, 1.710, 1.720 and 1.730, Florida Rules of Civil Procedure, for your reference, all of which apply to mediation. All certified mediators must certify that he or she has read the current Florida mediation rules. On June 19, 2014, the Florida Supreme Court released SC13-1732 amending the Florida Rules for Certified and Court-Appointed Mediators. The effective date is 1
October 1, 2014. In summary, Senior Judges are prohibited from mediating cases in the circuit in which they serve as a Senior Judge. FLORIDA STATUTES All certified mediators must certify that he or she has read the current Chapter 44, Florida Statutes, Mediation Alternatives to Judicial Action. I have provided you with copies of some of the more pertinent sections. Chapter 61, Florida Statutes, Dissolution of Marriage; Support; Time-Sharing pertains to Family Law cases. I have also provided you with a copy of 61.183 Mediation of certain contested issues. Courts must review and approve agreements and the judge enters an order or final judgment ratifying, incorporating and ordering the parties to comply with the terms of the agreement. PRE-SUIT MEDIATION I have found that pre-suit mediation is a good option when the parties are in agreement on most of the issues. A few pro se parties have come to me for pre-suit mediation and we have been able to resolve all of the issues. The petitioner can then proceed to file for a dissolution of marriage on an uncontested basis which is very quick and easy in Florida. A Final Judgment of Dissolution of Marriage was entered within less than thirty (30) days from the date the parties signed the Mediated Settlement Agreement. COURT-ORDERED MEDIATION Typically, the judge assigned to the case sends an Order Requiring Mediation to the parties (most Family Law cases are filed by pro se parties) or their attorneys. The petitioner is responsible for coordinating and scheduling mediation which shall be completed within thirty (30) days from the date of the Order. The parties are required to complete and submit the Information for Scheduling Mediation Form (see copy). The exact procedure may vary from county to county depending upon the Clerk of Court. My office is in Orlando, near the Orange County Courthouse where we have an excellent mediation program and facilities. There are numerous qualified mediators and the fees are very reasonable: $120 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; $60 per person per scheduled session when the parties combined income is less than $50,000. Indigent parties are provided services at no cost. The advantages of attending mediation at the courthouse are that everyone must pass through security so there are no safety concerns, the rooms are private and comfortable, and the fees (stated above) are extremely reasonable. Some of the disadvantages of attending mediation at the courthouse are that the mediators are assigned based upon their schedules so neither the parties nor the attorneys can choose a specific mediator and the session is limited to three (3) hours which is sometimes insufficient. PRIVATE MEDIATION We often use private mediators as opposed to the mediation program at the courthouse when we know that we have complex issues. We have many outstanding certified Family Mediators in the Orlando area who are all experienced attorneys as well whose fees range from $200-400 per hour. We normally schedule a minimum of three (3) hours but we often schedule a full day. 2
There are certain mediators who are more experienced than others in certain areas or speak a foreign language. For example, I have been contacted to mediate for parties who speak French or are in the entertainment industry because I speak French and one of my practice areas is Entertainment Law. Parties may attend mediation with or without attorneys. Since the attendance of attorneys is not required and mediators are not allowed to give legal advice, if pro se parties sign an agreement, they have ten (10) days to meet with attorney to have it reviewed. The mediator s role is to manage and direct the process and get all necessary information out on the table for discussion. Mediators facilitate discussions between the parties and assure them that they are being heard by a neutral mediator. PROCEDURE Unless there is a history of domestic violence, both parties (and their attorneys if they are represented) initially meet with the mediator who explains the process and the rules. Most mediators also give a brief summary of their qualifications and experience and ask if everyone agrees to be addressed by their first names. The mediator then asks the petitioner or the petitioner s attorney to outline the issues followed by the respondent or the respondent s attorney. At some point, the mediator will normally separate the parties and conduct a private caucus with each side. Unless a party authorizes the mediator to convey information, everything is confidential. Some clients complain if the mediator spends more time with the other side. It is fairly common for everyone to reconvene near the end of the mediation if it appears that an agreement has been reached or if the mediator finds it necessary to continue the mediation. If an impasse is declared, the parties simply go their separate ways. If the parties agree on all of the issues, a mediated settlement agreement is drafted by the mediator, reviewed by the parties and their attorneys, and signed. It is binding from that point unless one or both of the parties is unrepresented by counsel, in which case, there is a ten (10) day period for the pro se party to seek legal advice. It is also not uncommon for the parties to reach a partial settlement on some of the issues and have the remaining issues heard by the court. The nationwide settlement rate of mediation cases is reported to be approximately 87%. COLLABORATIVE PRACTICE I have not taken the collaborative practice training but many Family Law attorneys say that they wish they could do nothing but collaborative cases. Texas is one of the leading states in this type of dispute resolution but it is gaining in popularity in Florida. Each party has a team that consists of a collaborative law attorney, a mental health professional, a financial expert and, when appropriate, a child specialist. There are a series of private, confidential meetings with the focus being on improving communication between the parties, preserving and equitably distributing the financial resources, keeping the children out of the line of fire, preparing a good parenting plan, and keeping the control of the outcome in the hands of the parties. 3
Contrary to mediation which saves time and money, collaborative cases can be time-consuming and expensive. It is very important for the parties to be informed and understand that their collaborative attorneys are required to withdraw if the parties do not settle all issues. In this event, the parties will no doubt feel that they have lost significant time and money in the collaborative process. The nationwide settlement rate of collaborative cases is reported to be approximately 86%. BENEFITS OF MEDIATION o o o o o o o o Mediation saves time and money. Litigation always takes longer and costs more. There is less stress and anxiety when parties participate in the mediation process. Litigation often adversely affects the physical and emotional health of the parties. The parties often can remain on friendly terms. Going to court is an adversarial process. Most people would rather be in control of their own lives as opposed to having a stranger who has never met them or their children determine the future for them. During mediation, the parties are encouraged to jointly make the best decisions for the children and avoid the children being stuck in the middle of a legal battle between their parents. The parties are able to communicate effectively. Communication is adversely impacted when parties litigate. Discussions and statements made during mediation are confidential. Hearings are open to the public and the pleadings and financial information are part of the public record. Studies show that parties who enter into a mediated settlement agreement are twice as likely to follow the terms of the agreement. 4
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