Oftentimes, couples who are involved in a family law dispute resort to mediation either voluntarily or pursuant to a court order. Mediation has its advantages and disadvantages, both legally and practically, and so it is important for parties to understand the framework and scope of the process before deciding on their own to pursue it as a means of resolving family law differences. The mediation option is governed by Florida Law which provides some flexibility to parties in their choice of mediators and in the conduct of the proceedings.
The Mediation Process in Florida Divorce and Family Law Cases
Florida Statutes 44.108 and 44.1011 provide the statutory framework for mediation in the state court system. The term “mediation” is defined in Sec. 44.1011(2) as a process by which a neutral mediator encourages and facilitates the resolution of a dispute between two or more parties. It is informal and non-adversarial and has as its goal to assist disputing parties in reaching a voluntary mutually-agreeable resolution of their differences. The parties, not the mediator, are the decision makers. Family Law mediation can be utilized by married or unmarried parties in the context of:
- a dissolution of marriage;
- alimony and property division; and
- shared parenting plans involving child custody, support and visitation.
Parties may choose to undergo mediation voluntarily or they may be ordered by the court to do so. In cases where there is a history of domestic violence, upon request of a party or upon its own initiative, the court will not refer a case to mediation. Parties who wish to be considered for eligibility for court provided mediation services can submit a Florida Family Law Financial Affidavit to the Mediation Program. If the parties’ application is approved, the Mediation Program will select a family mediator by rotation from the court list. The fee for utilizing a court mediator is either $60 or $120, depending on the combined income of the parties. Alternatively, the parties may choose to retain a private mediator and hold a mediation conference in accordance with the court referral order.
Mediation has its advantages. It often is faster and therefore less expensive than proceeding through the judicial system. Parties often are better able to accept a mediated agreement that they have participated in crafting. Parents often learn how to communicate and negotiate better, which helps in resolving future disputes. Mediation is confidential, while most court proceedings are of public record.
Mediation is unlikely to be advantageous if one or both parties is intransigent in their position. If one party typically controls the other or in some way asserts too much power in the relationship, then the weaker party may be unwilling or unable to stand up for his or her best interests. If the mediator is unskilled and counsel is not experienced, the result may be an unfair and ill-conceived agreement.
The decision as to whether to resort to family mediation should be made upon the advice of counsel, unless it is ordered by the court. It is always in a party’s best interest to consult with an experienced divorce attorney before attempting to resolve a family law dispute. James S. Cunha is a highly skilled and knowledgeable West Palm Beach Divorce and Family Law Attorney who serves the legal needs of clients throughout South Florida. Call the Law Offices of James S. Cunha, P.A. at 561-429-3924, or toll-free at 1-800-558-1227, to schedule your 1 hour consultation.
