Why Do I Have to Go to Mediation?
Aug. 11, 2021
Excluding criminal cases, almost every single case filed in a Florida Court has to go to mediation. One of the reasons mediation is mandatory is because it works. Most cases settle out of court and that helps keep the cases moving smoothly through the court system and it usually results in a more positive court experience. As a Supreme Court Certified Family Law and Circuit Civil Mediator, I can say that I am partial to mediation. I have litigated for 22 years, but I much prefer negotiation to litigation for a lot of reasons. The first reason is control.
When parties resolve their own disputes, they are controlling the outcome of their case. If parties litigate in front of a judge, the parties are giving away all of their control to a perfect stranger who is only going to get snapshots of the case and who has bias’ that the parties generally have no knowledge of. The three rules of trial practice are 1) Know Thy Judge, 2) Know Thy Judge, and 3) Know Thy Judge. An attorney practicing overtime in front of the same judge will get a good understanding of what is important and not to that judge, but pro se litigants do not usually have that same advantage. If you want to maintain control over the outcome, then put your best effort into settling the case.
Limiting your risk is another good reason to settle your case. If you are at high risk for alimony, attorney’s fees, or child support, then settling the case often reduces the chance that a court would order you to pay more. The converse is true, at mediation you may be able to get a higher award than what a Court would give you.
People are usually more satisfied and more likely to follow an agreement rather than being forced into following a court order signed by a perfect stranger. Imagine, you and your ex cannot decide on a phone contact schedule with the kids, so you’re going to let a perfect stranger determine when you can talk to your children? The less you like being told what to do, the more reason to solve your own problems at mediation.
There are rules at mediation. First, the mediator is supposed to be neutral and not take sides. The mediator has no power or authority over your case and cannot make decisions for you. A mediator cannot give legal advice, and should not tell you what a judge may or may not do. All communications at mediation are confidential unless disclosure is required or permitted by law or unless the parties agree to waive confidentiality. What that means in plain English is if a party discloses elder or child abuse that has not been investigated, then the mediator must report that to the authorities. Some communications may be disclosed and certain communications must be disclosed. Actions are considered “communications,” so don’t’ go throwing a pencil at the mediator!
Mediation is the most informal step in the court process and is the only place where you can speak freely when meeting privately with the mediator. Having said that, mediation is not the place to vent and rehash all the old problems. The mediator’s role is not as counselor or therapist, rather the mediator’s role is to facilitate the communication process and act as somewhat of a buffer between the parties.
Mediation costs have been greatly reduced in Florida family law cases. Because mediation is so successful and contributes to the smooth administration of the court system, mediation in Florida family law cases are subsidized. In Florida, for families with a combined income of over $50,000 but under $100,000, the cost of mediation is $120 per person per three-hour session. Families with a combined income of under $50,000 only pay $60 per person per three-hour session, and persons who have qualified for indigent status pay no mediation fees.
Mediation should be viewed as an opportunity to control the outcome of your case and limit your risks at court. Having a forward-looking approach rather than a backward-looking approach is a better way to spend your time at mediation.