Articles Posted in Mediation

Continued from Part I. There is also a school of thought that it is perfectly valid for spouses or other parties to settle a case based on their sense of what is fair, without considering necessarily what they are entitled to under the law. There are some limitations to this – for example orders regarding children have certain requirements and the Judge must sign off on agreements parents reach regarding the children, but if the parents are able to reach an agreement, most times it is something that can be included or incorporated in the Court’s order.

If both sides in a case are viewing the case through completely accurate lenses, and there is no uncertainty about what the law says or the facts of the case, both parties could see the same range of possible settlement options and then it would be a negotiation process, decided by what issues are most important to each party, or by the negotiation approaches or skills of both sides. Many times, the two sides to a case enter a negotiation or mediation on somewhat opposite poles or ends of the spectrum regarding how issues in the case should be resolved — they see the case differently, probably for a number reasons including each party and their attorney probably identifying more with their side or position.

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As a Broward county divorce attorney, one issue that arises frequently is that divorce and other family law cases, if they are contested, can take a long time. A party has twenty days to file their “Answer” after being served. There can be a period of at least a month or two or longer when the parties exchange or have disputes regarding discovery, or file motions for and attend hearings for temporary support, attorneys’ fees and time-sharing. There can be a period of negotiation between the parties or their attorneys, and before too long several months have passed.

In some cases, there is a need for a hearing on temporary support and attorney’s fees early in the case. One party may have the financial resources to support themselves and pay for their attorney while the case is pending, while the other side does not. It makes sense to try to settle these temporary support issues by an agreement, if possible, versus putting money into attorneys’ fees and time for a temporary support hearing.

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Continued from Part I. For issues regarding the children, you can think about the type of time-sharing you want in the case, that you think is best for the children, and works for you and the other parent. For overnight time-sharing, relevant issues include being sure there’s a place in the home, apartment for the child to sleep, and the work schedule for each parent. Safety for the child, and for one or both parents is an issue in some cases. You’ll have to decide on how you want to handle the time-sharing exchanges and transportation, as well as money issues such as paying for extra-curricular activities, and medical, dental, vision expenses that are not covered by insurance, and who is going to get the health insurance for the child. The cost for health insurance is almost always added into and apportioned between the parents as part of the child support calculation. Many if not most mediators will have the family law financial software that will let them easily compute child support for you, once they have the figures to plug into the calculation. You can follow the following link for more information about calculating Florida child support. One good way to review and organize your thoughts regarding the children’s issue in a case, is to look through the form Parenting Plan on the Florida court’s website –, in the section of the website containing the family law forms.

If deciding who gets which assets and who pays which debts is an issue, it is a good idea to use some type of financial software or spreadsheet to keep track of how much in “net” assets each party is receiving, to avoid having to continually recalculate on a calculator as you keep trying out different options or scenario. It is also important to have recent account statements and pay stubs available and organized before you go to mediation, which can save you time searching for statements or calling the Human Resources department at you job during the mediation, to look for information regarding your earnings, the balance in retirement accounts, bank accounts, etc. If you need to deal with short selling or refinancing a home and removing one party’s name from the mortgage, you can think about how you want to handle this – how many months to refinance, what happens if it isn’t done or it’s not possible to get it done. Each case can involve different issues, depending on what there is to resolve. Sometimes people will use the first mediation session to help organize the issues and identify financial and other information needed to reach a settlement.

Sometimes, you will be able to resolve all of the issues in one mediation session. As I have mentioned before, in some mediations each party can take in the information they receive during the session, and come to decisions after the session. In my opinion, it’s better for there to be a period of time following a session before you sign an agreement, but many times parties will want to get everything done during the first mediation session, especially if the mediation is done as part of a case that is being litigated and both sides want it over, want to be sure they have an agreement, and want the litigation to end. Hopefully in a litigated case or otherwise, you won’t go into a mediation feeling that kind of pressure.

Mediation is available for you at different stages of the process of your pursuing your Florida divorce or other family law case. For a Broward County Divorce and for most other family law cases in Broward, Dade or Palm Beach county, you will be required to attend mediation before you can go to trial and finish your case, if you have not been able to settle the case on your own with the other side. You can also use mediation as a way to try to resolve you divorce, before filing suit in court – i.e. you and the other party to the case go to mediation and try to settle rather than litigating the case in court. Whatever route to mediation you take, there are some things you can do before the mediation to prepare – to help the mediation be as successful as possible and to help be sure the time in mediation is well spent, and used efficiently.

One approach would actually be to not prepare at all – go to the mediation without necessarily having thought a lot about the issues you want to settle, and without having checked on the value of assets, balances in different accounts, etc.; and use the mediator and the first one or two hour mediation session as a way to organize the issues and the financial information you will need to put together. Many times though you can get a lot of work done during one mediation session, and doing some preparation before the session can help make that possible.

You can get together a list of all of the assets and debts, and the “fair market value” of each asset and balance owing for each debt. Fair market value is basically what you can sell the item for now, whether it’s furniture, jewelry, or a used car. You’ll want to include on your list all of the assets acquired and debts incurred during the marriage, because the determining factor under Florida law in deciding whether an asset/debt is “marital”, is not whose name an asset or debt is in, but when it was acquired. It’s helpful to bring the most recent statement available with you to the session, for each bank account, credit card, retirement account, etc. You can obtain a credit report for yourself and the other spouse/parent or have an asset search done regarding the other party. Bring your most recent pay stub, and pay stubs for the past few months, if you are employed, or other documentation of your income if you are not an employee. Child support and alimony will be based on your net income, computed under the rules described in the Florida family law statutes. Having the pay stubs will help allow each parent/spouse confirm the other’s income. Also, often the parties, when they do the calculations themselves, compute their net income incorrectly, or at least in a way that is not consistent with the Florida family law rules/law. Your mediator can help both sides arrive at the income amounts to use.

I wanted to return in this post to a topic I have discussed before — the benefits of mediation for a divorce or other Florida family law case. It has been about a year since my last post about mediation, and in that time I’ve continued to become more and more convinced that mediation works, as a way of resolving family law cases.

As an example, a case of a couple who came in for mediation to attempt to settle the divorce action they wanted to file. Neither spouse had filed for divorce yet. In many respects this was a case in which a positive result in mediation was likely – the spouses were getting along well enough to be able to discuss the issues they needed to settle, and both wanted to settle the case without litigation. There were issues to address however. No agreement was reached after an initial two hour mediation session, but the parties left the session, ended up arriving at agreements between themselves, and came back for a final mediation session to address the last remaining issues and prepare a Settlement Agreement. I’ve also had cases where I am the attorney for one party and didn’t believe the parties were going to be able to arrive at an agreement during mediation, but they do.

One or two anecdotes are not a guarantee of positive results in other situations, but one factor that helps parties arrive at an agreement through mediation is that as part of a mediation, each party receives new information to consider, from each other and also the mediator. Although a mediator is not permitted to give legal advice to either party, the mediator can provide general information about Florida law and related issues. You can follow this link regarding Florida Divorce Mediation for more of a discussion regarding the differences between the types of information or guidance attorneys and mediators can provide. In addition, there is an old adage (that I believe came out of research and writing at the Mental Research Institute in Palo Alto, California years ago) – that you cannot not communicate. So even for a mediator who attempts to remain as much of a blank screen as possible and simply serve as a facilitator or intermediary between the parties, the parties will still pick up information from the mediator. It is important I believe for a mediator to recognize that mediation can be a quick process, the potential influence they can have on the parties, and that for all people, including mediators, first impressions and judgments are not always the same as what you arrive at after thinking through an issue more thoroughly. For some issues, although it is helpful for a mediator to think of options or paths to settlement for the parties, it is important for the mediator to not engage in the thought process of beginning to make a value or other judgment about how an issue should be resolved. In any event, the parties receive during mediation and walk away with new information, and my experience is that people take in this information, think about it and what it means for how their case might turn out and how it should be settled, and that this a factor that leads to issues being settled.

Another process, which I don’t think is quite as well known at this point as mediation, is Collaborative Family Law. It’s basically a process where both sides and their attorneys agree and commit to resolving the case outside of court. Everyone signs an agreement that if the case ends up contested in court, neither of the attorneys who participated in the collaborative family process is permitted to represent a party in court. Family Law is usually thought of as a approach where everyone tries to get along, and usually happens as a series of meeting with all the parties, attorneys and any experts present, where the parties “collaborate” and try to resolve the case.

I believe it’s possible for it to work also in situations where there is high conflict, it the parties make some basic commitments, at least in their own minds. Even if the parties hate each other, and have no interest in sitting in the same room, it’s still possible for everyone to commit to resolving the case outside of court – i.e. deciding we’re not going to file a court case, we’re not going to go through all the court processes, hearings, “discovery” etc. and one way or another, we are going to resolve the case. In addition, instead of handling the collaborative family law case through meetings with everyone present, the case can proceed to resolution through more informal negotiation, e.g. between the attorneys. You’ll find that attorneys in a collaborative family law case often have a different approach or orientation, than even the same attorneys do when handling a litigated, adversarial case. In a litigated case, attorneys can be cordial, even friendly and get along, but the litigation process involves a potential eventual trial, and the case has to be prepared with that in mind – i.e. an adversary process, versus the approach or orientation in a collaborative family law case where the idea is to work together.

For these alternative dispute resolution approaches to work, either mediation or collaborative family law, both sides need to be reasonable – at least in terms of not relentlessly, without end, seeking a settlement that is simply not reasonable. Sometimes seeking an “unreasonable” settlement will work for you – e.g. try to go to mediation to get a settlement that there is no way you could get in court, but if the other party is represented by a competent attorney or is aware of what Florida law provides, it’s likely to result in no settlement. Although some mediators may not want to acknowledge this, there are almost certainly cases where one spouse or the other wants to get the case into “pro se” mediation, with the primary goal of getting a settlement that isn’t “fair” and won’t fly if their spouse gets legal counsel. Similarly, there are probably cases where one spouse or the other is interested in collaborative family law because they seek to drag out the process or get a resolution they couldn’t get in court. On the flip side, there are probably more cases where the parties could settle through mediation or collaborative family law, without the fight and with less expense than they get if they file suit and contest the case in court.

More and more clients and divorce attorneys in Broward, Dade and other parts of Florida are moving towards trying to resolve family law cases outside of court. It’s always been the case that most divorces and other family law cases are settled outside of court, before trial, but something that is become more popular these days, as people look for less adversarial and less expense ways to handle divorces, is something often referred to as “alternative dispute resolution”, including Mediation and Collaborative Family Law. Many people are pretty familiar with mediation, and there is an earlier post on the blog discussing mediation. You can find more information here about Collaborative Family Law.

The issue I wanted to address in this post is can these alternative, or potentially more friendly approaches work where the parties don’t like each other, or where there are still extremely strong feelings of anger or resentment? You don’t necessarily quickly get over being seriously wronged by another person – especially a spouse or other person who was close to you. So the question is, while mediation or a collaborative process can work when people basically get along and agree about how they want to settle things, can it work when that is not the case at all? I believe the answer to that question – for a few reasons, is yes.

First, you can hate someone – be incredibly angry at them, but still want to get your divorce or other case resolved, done, so you don’t have to live with it for a year or more, and spend large amounts of money on attorneys. There are cases of course, where one side or the other wants to litigate and make the other side suffer. Perhaps that is an appropriate course of action sometimes – I think that’s more a decision each person has to make for themselves or with a counselor they’re working with, etc. There are limits to what’s permitted in the legal system, however – parties aren’t permitted to take positions that are without any support, conflict between parents can have a negative effect on children, and there is the question of how much satisfaction a person can really get from fighting through the court system, or if that is a “curative” process.

With some exceptions, for example when it is not safe to hold a mediation because of domestic violence, mediation will be required in most divorce and other family law cases in Broward and Dade counties, before the case can go to trial. Both Broward and Dade County have a court mediation program to provide family mediation at a reduced rate when the parties’ combined gross income is below $100,000 per year (see my post,The Process for Divorce Cases in Broward and Dade Counties (Part II), for links to these programs).

For other clients, or clients who prefer to use a private mediator, there are many private mediators in town. If you’re represented by an attorney who is handling your case, you will almost certainly work with your attorney who will coordinate with opposing counsel to select a mediator acceptable to both sides. There are cases though where the clients – both spouses, will call a halt to litigation and go off on their own to try to mediate and resolve the case without their attorneys, although this isn’t all that common, and your attorney may have some concerns about that. The spouses can also choose to go to “pre-suit” mediation, before beginning any litigation, and with our without attorneys.

Family law mediators come from varied backgrounds – e.g. attorneys or counselors/therapists, and will have different styles or approaches. One issue would be the comparative “success” rates for attorney vs. mental health family mediators, but an approach some people advocate is “co-mediation” with two mediators – one an attorney and one a therapist or other mental health professional. It’s a complicated issue with many factors to consider, but in the end, it may come down to the personal skills or traits of each particular mediator.

Once a case enters litigation, all of the decisions, in each phase, are important in trying to efficiently and successfully resolve the case. Discovery is the process where each party gets to obtain information regarding the other party – financial and other records, depositions, written questions to the other side, and requests for the other spouse to make admissions regarding important issues – called Requests for Admissions. Discovery is an important and often expensive process.

Motions for Relief while the case is pending can involve many things – a request for temporary spousal support, a ruling by the Judge regarding visitation or how particular assets or debts are going to be dealt with while the case is pending, or a request to have a child returned to the jurisdiction if one parent moves with the child. The are many potential issues, ranging from financial to emergency hearings regarding the children.

Although mediation is a fairly common concept these days, and most people probably have some sense of what that is, there are sometimes some mis-perceptions about what the mediator will do. The mediator is not a judge for the case, and does not make a binding decision about the outcome of the case after each parties argues his or her side. Mediators, though, do have different styles or approaches, including how directive they’ll be in giving an opinion regarding how a case should be resolved, and whether they’ll conduct the mediation mostly with both parties in the room, or more via “caucuses” where the parties are in separate rooms and the mediator in a senses does shuttle diplomacy going back and forth between the parties. Some mediators are attorneys and some are therapists or other mental health professional. So, picking a mediator that both parties can agree on and that you believe will be good for you, is an issue that will come up at this stage of a case. If the parties cannot agree on a mediator, the Judge will appoint one, and if the parties’ combined net income is low enough – below $100,000 in Broward County for example, the parties can attend reduced fee mediation through the court mediation program located at the courthouse. You can find information about the Broward County court mediation program here, and about the Dade County program here.

For my first post I want to focus on the process you’ll go through in family court for divorce cases. I think different people will find different ways to go through a divorce or other family law case – some people are most comfortable trying to find someone they can connect with and trust to give them information they need and guide them through; some people will also want to look on-line like this and try to get information to help. With all the information available now on the internet, it’s almost inevitable that we all do at least a few internet searches to look up information, whether we’re dealing with buying a new car or appliance, researching a medical issue or here issues regarding a divorce or other family law cases.

One thing I think is helpful is to have some sort of an overview of the whole process. There are a few ways a divorce case (or a case to establish paternity or child support and other family law cases) can proceed. One way is everyone agrees in advance, there is no dispute, the parties prepare all the required court pleadings and settlement agreement together. I’ll put together in a future post a list of the forms you’ll need, for example, for a divorce case where there is property to divide and the parties have minor children. If everyone agrees and there are no disputes or uncertain issues, the case can be resolved quickly.

In other situations, the divorce case in court begins by someone filing a Petition for Dissolution of Marriage – a divorce lawsuit in which the “Petitioner” asks for what they are seeking in the divorce – dissolution of the marriage, division of property, child-support, time-sharing for the children, alimony, and begins to present and explain their case to the Judge. After the Petition is filed the case proceeds along the following course:

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