Mediation in Family Law Litigation

As family law attorneys, one of the most common questions we hear from clients is, “Am I going to be okay? Is my family going to be okay?” Our job is to help people who are making substantial transitions in their lives. Transition brings about change and change can be a frightening proposition for many reasons, not the least of which is the uncertainty it generates. For the family law litigant, nothing summons uncertainty quite like walking into a courtroom and leaving one’s fate in the hands of the trial judge. Fortunately, there is a mechanism by which the parties can take back control over their case and, in turn, their lives. That mechanism is mediation.

Family Attorneys in Florida | Mediation, Litigation and Settlement

Mediation and settlement of family law disputes is highly favored in Florida Family law. The Florida Family Rules of Procedure provide for mediation of substantially all contested family matters, and also provide for expedited mediation of family issues. See Fla. Fam. L.R.P. 12.740(b). In Florida dissolution of marriages cases, once a mediated marital settlement agreement is binding, it is just like any other agreement or contract. See Schmachtenberg v. Schmachtenberg, 34 So 3d 28, 32 (Fla. 3d DCA 2010) (“A [mediated] marital settlement agreement that has been ratified by the trial court is…like any other contract.”).

So, What is Mediation?

Mediation is a settlement conference in which the parties, and their respective counsel, attempt to resolve the issues in their case with the assistance of a neutral third party, known as the mediator. Absent some very limited exceptions, the mediation process is confidential, and nothing said or done at the mediation can be held against, or used by, either party at trial. The rule providing for confidentiality enables the mediator to facilitate open and honest communication, which provides a setting that lends itself to good faith negotiation between the parties. The goal of mediation is to help the parties hold onto the control and certainty that they will ultimately be relinquishing were the case to proceed to trial.

Mediation is certainly a preferable form of dispute resolution in any case, as it provides the parties an opportunity to resolve their issues and preclude the need for further litigation. More significantly, however, mediation grants the parties wide latitude to make agreements as they see fit, without being subject to the same statutory constraints that would otherwise restrict the trial court. Taylor v. Lutz, 134 So. 3d 1146 (Fla.1st DCA 2014). See, e.g., O’Malley v. Pan Am. Bank of Orlando, N.A., 384 So.2d 1258 (Fla.1980) (holding parties may agree for an alimony obligation to continue beyond the death of the obligor and be enforceable against his estate); Bingemann v. Bingemann, 551 So.2d 1228 (Fla. 1st DCA 1989) (finding parties had assumed the obligation to pay college expenses for their child beyond the age of emancipation and holding the trial court must enforce that agreement as a matter of contract).

Navigating the family law litigation process is a treacherous prospect, with many unknowns. While mediation provides an avenue for litigants to take back control and have a say in their fate, not every mediation is successful and many cases do require trial. However, whether your case involves reasonable parties who each have an eye on settlement or more contentious litigants who “just want their day in court”, it is of the utmost important that you secure competent counsel to assist you in maneuvering the family court process.

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