Mediation FAQ

Mediation FAQ

What is mediation? Mediation is a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person (called a mediator). A mediator is not allowed to decided who is right or wrong or to tell you how to resolve your dispute. In mediation, you can try to find solutions that make sense to you and the other person in the dispute to resolve some or all of your concerns.

Mediations are often required prior to a divorce trial. Mediations can be very successful in a divorce, much less costly than going to trial, and can finalize a case months earlier than a final trial date. Furthermore, mediations benefit both parties as they provide ample time to address each intricate issue. It is in everyone’s best interest to complete a successful mediation agreement.

Advantages of mediation also include the opportunity to talk with someone who is impartial, confidential, and flexible. Mediation agreements are enforceable and you will know what you have agreed upon (rather than gamble with what the judge may decide if you go to court).

Florida rule that governs mediation of family matters, Rule 12.740, states:

“(a) Applicability. This rule governs mediation of family matters and related issues.

(b) Referral. Except as provided by law and this rule, all contested family matters and issues may be referred to mediation. Every effort shall be made to expedite mediation of family issues.

(c) Limitation on Referral to Mediation. Unless otherwise agreed by the parties, family matters and issues my be referred to a mediator or mediation program which charges a fee only after the court has determined the parties have the financial ability to pay such a fee. This determination may be based upon the parties’ financial affidavits or other financial information available to the court. When the mediator’s fee is not established under section 44.108, Florida Statutes, or when there is no written agreement providing for the mediator’s compensating, the mediator shall be compensated at an hourly rate set by the presiding judge in the referral order. The presiding judge may also determine the reasonableness of the fees charged by the mediator. When appropriate, the court shall apportion mediation fees between the parties and shall state each party’s share in the order of referral. Parties may object to the rate of the mediator’s compensation within 15 days of the order of referral by serving an objection on all other parties and the mediator.

(d) Appearances. Unless otherwise stipulated by the parties, a party is deemed to appear at a family mediation convened pursuant to this rule if the named party is physically present at the mediation conference. In the discretion of the mediator and with the agreement of the parties, family mediation may proceed in the absence of counsel unless otherwise ordered by the court.

(e) Completion of Mediation. Mediation shall be completed within 75 days of the first mediation conference unless otherwise ordered by the court.

(f) Report on Mediation.

(1) If agreement is reached as to any matter or issue, including legal or factual issues to be determined by the court, the agreement shall be reduced to writing, signed by the parties and their counsel, if any and if present, and submitted to the court unless the parties agree otherwise. By stipulation of the parties, the agreement may be electronically or stenographically recorded and made under oath or affirmed. In such event, an appropriately signed transcript may be filed with the court.

(2) After the agreement is filed, the court shall take action as required by law. When court approval is not necessary, the agreement shall become binding upon filing. When court approval is necessary, the agreement shall become binding upon approval. In either event, the agreement shall be made part of the final judgment or order in the case.

(3) If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, 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.”