In most family law matters in the State of Florida like a divorce or a Supplemental Petition for Custody or a Supplemental Petition for Child Support, mediation is required. There are circumstances that mediation is not required, but for the most part, when you are going into this litigation, you should plan for mediation. This is actually a good thing. People are often shocked at how often a case actually does settle at mediation. I have had people over the years come to me saying how unreasonable their wife is and that she will never settle a case. They have asked me to do whatever I could to cancel or avoid the mediation because it is an unnecessary expense. First, you can’t avoid it. Don’t even try. Most Judges demand it. Second, it is shocking how many of these “unreasonable” people actually settle the case by the time it gets to mediation. This settlement avoids thousands and thousands of attorney’s fees and just the sheer headache of litigation.
Litigation is extremely stressful. The only people who truly win at prolonged litigation are the attorneys. Yes, I am a divorce attorney and I am saying that. Prolonged litigation puts my kids through private school while taking the money from your kids. It is a reality. This is why at our firm we try to make the litigation go as quick as possible. We are very aggressive, but that aggressiveness actually makes other people want to settle. Our training for trial and as many trials as we do have, again, actually made other attorneys want to settle. So, although I am talking about how good mediation in a divorce is and in a custody case in Florida, you still have to be carrying that big stick behind your back so that they know that if the mediation doesn’t settle things, the last thing that your wife and opposing counsel want on this planet is to face one of our attorneys in Court.
Having said all that, you should always go into mediation wanting to be reasonable so that you can move on with your life after having reached a deal. The discovery process needs to be almost if not completely done so that you have all of the paperwork completed so that you have all of the answers you need at your fingertips while you are negotiating things. What typically happens in a mediation is the husband will be with his attorney and the wife will be with her attorney and be sitting in separate rooms. The mediator is an impartial third party that will basically bounce back and forth. I have described this process to people as basically the same characteristics of buying a car. Of course this isn’t a car you are buying but coming to a deal that could potentially affect your life for a long, long time.
A lot of mediators like to start off with all parties in the same room together and go over some ground rules. I am not really a fan of this way to start, but the mediator is the one in control at mediation so basically you have to do what he or she says. Once the ground rules are given, the mediator will then put the parties in separate rooms with their attorneys. We have a rule at our firm that we do not push too hard to settle. Some clients just really want their day in Court. We do have an ethical obligation, however, to let you know that you are receiving a good deal and you should sign, and the likelihood of the same result in Court. There have been times that attorneys are accused of pushing their clients to settle and even being accused of working with the other side. Our attorneys absolutely don’t do this, but when there is a deal on the table that is a very good deal considering all the risks involved, our attorneys have to advise you of this.
Remember, it is against an attorney’s general nature to “push” to settle. That means if you settle the attorney’s fees stop. Why would an attorney want that? You must go into a mediation with the open mind and listen to the advice of your counsel. Many times clients will think that if they just get in front of a Judge to hear their side, that the advice the attorney has given is wrong and it will be different in this particular client’s case. This is not a theory that usually works. Remember, Judges have a very high case load and are oftentimes very busy. I found most Judges to be extremely thoughtful and fair, but when they are hearing so many cases, it is simply human nature to get more of a callous even on very sensitive subjects. It is almost a defense mechanism. Having said that, our firm absolutely will not push you to settle. We will tell you the likelihood of your results in Court and the strength and weaknesses of your case and if you do not want to settle at mediation we will be extremely prepared and aggressive to take you to trial.
We have divorce and custody attorneys in Tampa, Florida as well as in Boca Raton and Ft. Lauderdale. We have family law attorneys in Daytona and Ft. Walton Beach and Pensacola. Divorce lawyers in Gainesville, Jacksonville and Clay County as well. Our firm specializes in men’s rights in a divorce and custody matter as well as all family law actions. We have 9 offices across the State of Florida to help you basically wherever you need. Family Law Rule of Procedure 12.740 and 12.741 govern mediation of family matters and related issues. Unless otherwise stipulated by the parties, a party is deemed to appear at a family mediation if the named party is physically present.
Mediation shall be completed within 75 days of the first mediation conference unless otherwise ordered by Court. Discovery is not suspended during the mediation process, unless stipulated by the parties or ordered by the Court. Once an agreement is reached in mediation, it must be reduced to writing, signed by the parties and their attorneys, if present, and submitted to the Court. An oral settlement agreement reached in mediation, is not binding until such time as it is reduced to writing, signed and filed with the Court, or a transcript of the agreement made under oath is signed and filed. When no agreement is reached in mediation the mediator reports the lack of agreement to the Court. Florida Statute 44.405 makes it clear that all mediation communications are confidential. More importantly, this statute creates the ability to obtain sanctions, including attorney’s fees, costs and mediator’s fees, if a participant discloses any mediation communication to someone outside the mediation participant and their counsel.
An oral agreement reached in mediation is inadmissible as privileged and cannot be brought before the Court. If you want to learn more about this or have any further questions please go to our website at www.divorcemenonly.com. Kenny Leigh & Associates exclusively represents men in the area of family law in the State of Florida.
