By: Brusca Law
Mediation is a voluntary process, where individuals meet with a neutral, independent third party, who helps them formulate their own agreement. Mediations are confidential and can have all sorts of outcomes, many which may resolve the case without the need for a trial. A Judge will not be at your mediation, although you may have a former judge serving as your mediator. Remember, regardless of whether your mediator is a former judge or current attorney, they may not give you legal advice during the mediation.
The Mediator should act as a facilitator and help you focus on resolving as many issues as possible at Mediation. Sometimes mediators take an active role, other times they may be extremely passive. You will learn quickly the style of your mediator, and you should speak with your attorney about the characteristics of the mediator before the mediator is selected. If for example, your partner is a bully and has a tendency to control, you may not want a passive mediator.
What is a Caucus?
Caucus (pronounced caw-cus) is a term used during the mediation to describe when the parties go into separate rooms with their individual attorneys and leave the joint session. Caucusing can be helpful when the parties are stuck on one issue, or they begin to argue. During mediation, you will be discussing some emotionally charged topics, and it may be difficult for you to address them in a joint session. You can always request to caucus during the mediation, and you should caucus during a mediation if you feel uncomfortable speaking about the specific topic in front of everyone.
Possible Outcomes at Mediation
Temporary Mediation Agreement- A temporary agreement is an agreement reached during mediation which helps the parties move forward for a certain time-period or until further order of the court. If you are concerned about the temporary agreement working against you in the future, you will want to put language in the agreement that indicates the agreement is not to be used as a presumption for or against a party in the future. You can also agree to continue your case until the next mediation, which may keep both parties concentrating on the next mediation, rather than preparing for trial.
Partial Mediation Agreement- A partial agreement is like the name suggests, it is a partial agreement covering only a few of the key issues. A partial agreement can be binding in full on those specific issues, so make sure you understand that if you fully commit to a partial agreement you can do so without worrying about other factors that might change. Partial agreements must be cautiously entered into as they are full agreements on only a few issues. It is very important that the heading of the agreement says clearly that it is a “Partial Mediation Agreement” rather than being non-descriptive or just a general “Mediation Agreement”.
Complete Mediation Agreement- A complete agreement is like the name suggests as well, and it is a complete agreement on all of the issues. Before you sign a complete mediation agreement, make sure you have all of your issues hammered out and that you are not missing anything. Remember, any oral promises made at the time you sign the mediation agreement may not be enforceable, if the agreement contains language that indicates that the written agreement only governs the agreement made on the day you sign. Rule of thumb, if you want it to happen, write it down.
Outside Pressure During Mediation
If you have a mediation scheduled at the courthouse, you typically only have 2 to 3 hours for your mediation session. In Orange, Osceola, and Seminole counties in Florida, you are only required to attend one mediation session, or additional sessions as the Court may order or as the parties agree. You may schedule those mediations with the mediation departments at the courthouse or you may schedule a private mediation. Private mediations will typically take place at the mediator’s office and will be more expensive. The great thing about private mediations is that you can schedule an entire day, and you can go at a slower pace than the court house scheduled mediations.
When you are at a Mediation, the time will go by faster than a blink of an eye, even if you have dedicated an entire day to the process. Mediation is stressful—you must know a lot of information and make many decisions (typically only on one day) that will impact your future long-term. Your attorney will ask you difficult questions that might need answers that very day, and you will typically not be allowed to speak with third parties during the mediation. You will feel stressed, unprepared, and scared. The key to combatting this is to have as much information ready to go BEFORE mediation and make sure to speak with your lawyer about a week in advance about strategy.
During the Mediation itself, you may not be ready to commit to a complete agreement. You should let your attorney know this. Remember, never ever ever ever sign a mediation agreement unless you are ready to commit to the terms, regardless of what you think is expected of you. Even if you feel as though the Mediator, your own attorney, or even the attorney on the other side is pressuring you to commit to an agreement, only you can decide whether you should sign or not. A Judge will not set aside a Mediation Agreement solely because you made the wrong decision or because you think in hindsight that you made a mistake by signing. Do not sign because of pressure, sign because you want to.
Payment for the Mediation
Private mediations can be very expensive, with mediators charging from $150 to $400 per hour, or flat rates for full or half days. Know before you go, what the hourly rate of the mediator is, what their minimum rate is, and what your responsibility will be for payment. Both parties can pay for mediation or one party can pay in full—unfortunately there is no law or rule that specifically states who must pay what at mediation. Your attorney can help you select the mediator that is the right fit for your case both in their style and in their fee structure.
Brusca Law is Here to Help
The negative stigma attached with "conflict" is not always warranted. Conflict can be a positive thing, and if channeled in the right way, it can be productive and change your perspective. Mediation is so successful because it helps people address their conflicts head-on in a positive manner, and it can help people make their own decisions without a Judge doing it for them.
At Brusca Law, we have an organized and systematic approach to Mediation, which helps prepare our clients for the process in advance. Mediation can be complicated and frustrating if you don’t know what to expect. Attorney Lauren Roderick Brusca handles all sorts of mediations in family law, including divorce, paternity, modification of support/alimony, and modifications of child custody or time-sharing. Contact Brusca Law at 407-501-6564, to schedule your free consultation today and learn if mediation can help you and your family.