Many people have heard the terms “alternative dispute resolution” or “ADR”, but may not know what they mean. Below, we have tried to answer some of the basic questions about ADR. We hope that you find what you need. If you have any further questions, please do not hesitate to ask!
- Do I have to reach a deal at mediation?
No. In Florida, mediation is based on the principle of self-determination. So, you (and the other party or parties) to the mediation decide whether there is a deal and, if so, what the terms of that deal may be. If you don’t agree, there is no deal, and the dispute will be resolved in court (or arbitration, if that is the means of dispute resolution the parties have agreed to).
Note: “Settle” isn’t a “four-letter word.” Just because you don’t have to reach a deal doesn’t mean you shouldn’t seriously consider it. During mediation, it is not uncommon for the mediator (and your attorney, if you have one) to point out the many reasons why it might make sense for you to settle the dispute in mediation, rather than take your chances in court.
Among the most common reasons people choose to settle at mediation are:
- the reduced cost in legal fees and expenses
- the much shorter time to conclusion (a few hours instead of several months or years in court or arbitration)
- the huge relief of having the matter resolved (instead of hanging over your head)
- the ability to get at least some of the outcomes you seek through litigation, whereas you may wind up with none of what you wanted if you let the court (or arbitrator) decide
- the fact that parties can agree to resolve their dispute on any legal basis, rather than just the specific things that a court (or arbitrator) could award – so parties can get creative in their mediated settlement agreement, if you both wish
Having said all that, the ultimate decision, about whether and under what terms to settle at mediation, rests with you and the opposing party or parties.
- How does mediation work in divorce cases?
Mediation works essentially the same in divorce cases as it does in other kinds of civil cases. You and the other party meet with a mediator, in a confidential setting, and the mediator helps the two of you try to reach a deal to resolve the issues in most divorce cases. The most common issues in divorce mediation are:
- Parenting – both parental responsibility and timesharing with the minor child(ren)
- Equitable Distribution of the marital assets and debts
- Alimony – whether and how much will be paid and by whom
- Child Support – the amounts are usually calculated based on a formula dictated by Florida Statutes
- “Everything Else” – any other items the parties may wish to discuss
The mediator may meet with both of you together, individually with each of you, or go back and forth between you. The mediation may also take more than one session, depending on how much time is initially scheduled and how quickly the both of you are able to reach an agreement – if you do.
One big difference between divorce mediation and most other kinds of mediation is that a court is ALWAYS involved even if the parties reach a deal. You cannot just agree to be divorced; the court has to order it. Florida law makes it relatively easy for people who are not represented by attorneys, but who have entered into an agreement that works out all the issues, to get a divorce. There are some forms you and your (soon-to-be) ex-spouse must complete. You can find a list of these documents at http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/family-law-forms.stml (please note, some circuit courts have specific versions of the forms they want you to use, and they may also require other forms, so check with your local Clerk of Court).
Of course, if you have an attorney, all the better; that way, you are certain that all the issues are addressed properly. Neither one of you is required to have an attorney to file a divorce, but the divorce mediator of your case – even if he or she is an attorney – cannot represent you or give you legal advice in connection with the divorce.
- How long does mediation take?
It varies, depending on the type of case, whether attorneys are involved, whether the parties are trying to resolve the entire dispute in one session or over multiple sessions. Other than small claims court mediations – which usually only last about half an hour, mediation sessions usually range between two and six hours.
- How much does divorce mediation cost?
It depends. If you are already in court and are ordered to mediation, you have two options: you can choose a mediator (if you and the other party agree on that mediator) and ask the court to appoint that person (this is sometimes called a “private mediation”), or you can use the mediator the court program assigns you (called a “court-annexed mediation”).
- If you and the other party agree to private mediation, then you will pay whatever that mediator’s rates are. That can vary from mediator to mediator; some mediator charge as little as $200 per hour (total; $100/hr per side), with no minimum; some charge as much as a $400 per hour (total; $200 per side); some charge a flat fee of $750 – $3,000 for the entire mediation process.
- If you and the other party do not agree to private mediation, and you have court-annexed mediation, then Florida Statutes spell out how much each party has to pay. Court-annexed mediation rates are, as of October 1, 2014:
- One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year;
- Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000
(See Florida Statute § 44.108(2))
- What is Arbitration?
Arbitration is another form of alternative dispute resolution. In Arbitration, the parties agree to have a neutral third party, called an arbitrator, decide how their dispute should be resolved. Arbitrations can be held with one arbitrator or a panel of three or more arbitrators, whose consensus decides the outcome of the dispute. Arbitration can be either binding (in the sense that the parties agree to abide by the arbitrator’s decision) or non-binding (in which case the parties may pursue other means of resolving their dispute, such as litigation before a judge and jury).
An overview of the Arbitration Process is available for download here.
- What is Early Neutral Evaluation?
Another form of alternative dispute resolution, Early Neutral Evaluation is a process similar to (but less formal than) Arbitration, where both sides in a dispute ask a neutral third party (usually someone familiar and experienced in the subject matter at hand) to appraise the relative strengths and weaknesses of the legal claim(s) at issue. The process is best done early, before too much expense is invested in litigation: either before or shortly after suit is filed. Typically, such evaluations are then used to plan negotiation and litigation strategies.
- What is Fact-Finding?
Fact-Finding refers to an alternative dispute resolution mechanism in which a neutral third party examines documents and interviews witnesses to determine, as best as is reasonably possible, what happened, so parties (and their attorneys, if they are involved) can then determine the appropriate course of action. Unlike Arbitration, which decides not only what happened but also the legal consequences of what happened, Fact-Finding merely provides the party or parties an understanding of what at least one neutral observer would conclude had occurred. The Fact-Finder’s job is to weigh the relative credibility of the witnesses and documentary evidence, to reach a conclusion as to what happened. It is then up to the party or parties to decide what, if any, legal consequences arise from those facts.
- What is Mediation?
Mediation is a form of alternative dispute resolution. It is a collaborative process in which a neutral third party, called a mediator, facilitates discussion between two or more parties, in an attempt to help them reach agreement. The mediator does not decide how the matter should be resolved; only the parties decide whether, and on what terms, their dispute should be resolved. In effect, Mediation is a facilitated negotiation conference, conducted in a confidential setting. Click here to download “An Introduction to Mediation.”
Since Chris Shulman is a Florida certified Circuit Civil and County Mediator, the Florida Mediation Confidentiality and Privilege Act, Sections 44.401 – 44.406, of the Florida Statutes, automatically applies to any mediation he conducts, unless the parties expressly agree in writing to opt out of the Act and inform Mr. Shulman of this before the mediation begins. Chapter 44 of the Florida Statutes is available online.
Learn how to become a Florida Certified Mediator by clicking here.
- What is the difference between Mediation and Arbitration?
There are several similarities between these two alternative dispute resolution methods. First, they are both much less formal and less costly than judicial proceedings. Second, you need not have an attorney represent you, as you likely would in court. (Of course, it is often advisable to have an attorney either with you or available to you while you prepare for and participate in either Mediation or Arbitration. An attorney can help you put your best foot forward, knowing your rights and the relative strength of your case.)
There are several differences between these two alternatives to judicial resolution of disputes, but the primary difference between them is: who decides the outcome of the dispute? In Mediation, the parties themselves, with the assistance and facilitation of the mediator, decide whether the dispute should be resolved and, if so, on what terms. In Arbitration, on the other hand, the parties agree to let someone else (either one arbitrator or a panel of arbitrators) decide the outcome of their dispute for them.
Unless the parties agree to mediate, only a court having jurisdiction over the parties can require parties to mediate. Even when required to attend mediation, parties are not required to settle at mediation, although exploring such settlement is the principal reason for going to mediation.
In contrast, if two parties have previously agreed to arbitrate any dispute between them, then, under applicable federal law (the Federal Arbitration Act) and Florida statutes (the Florida Arbitration Code), a party who later declines to arbitrate can usually nonetheless be compelled to have the controversy resolved through arbitration. Typically, this is done by sending the opposing party a demand for arbitration. If the opposing party fails or declines to participate, then the party seeking to have the matter arbitrated will file a motion to compel arbitration in an appropriate state or federal court. 9 U.S.C. §§ 4, 6; Fla. Stat. § 682.03. After the opposing party has been formally served with the motion, then a hearing is scheduled with the court, to determine whether there is a valid agreement to arbitrate. If the court finds that such an agreement does exist, the court will enter an order compelling arbitration. Id. If the parties have specified a method for selecting and appointing an arbitrator or arbitrators, the court will usually direct the parties to use that method; otherwise, the court has authority to appoint arbitrators. 9 U.S.C. § 5; Fla. Stat. § 682.04.
Note: Florida Law also provides for Court-Annexed arbitration of matters already pending in the Circuit or County Courts, which can be nonbinding (Fla. Stat. § 44.103; Fla. R. Civ. P. 1.820) – in which case, the Court can require the parties to go to arbitration – or binding (Fla. Stat. § 44.104;Fla. R. Civ. P. 1.830) – in which case, the Court can only send the parties to arbitration if they agree. To be appointed by a court to serve as an arbitrator for one of these disputes, one must have, among other things, have completed Introductory Court-Appointed Arbitrator Training, which we offer.
- Why should I use a Florida Supreme Court certified mediator?
Because a Florida Supreme Court certified mediator may be better qualified to assist the parties explore resolving their dispute.
A Florida Supreme Court certified mediator is someone who has completed classroom training, has met certain minimum educational and experience requirements, has completed additional “on-the-job” training, and has passed a limited background screening. Such a certified mediator is also required to stay current with mediation practice through continuing education.
There are two other big reasons to use someone who is certified. Florida Supreme Court certified mediators:
- Bring statutory confidentiality to the process (just by mediating with a Florida Supreme Court certified mediator, the mediation is automatically covered by Mediation Confidentiality and Privilege – see Fla. Stat. § 44.402(c)
- Trained and required to abide by the Florida code of mediator ethics (the Florida Rules for Certified and Court-Appointed Mediators, Fla. R. Med. 10.200 – 10.690). Thus, your mediation experience will honor the three core principles of mediation in Florida: party self-determination; mediator impartiality; and confidentiality of the process