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Legal Planning and Dispute Resolution in Estates, Business & Family Law

FAQ

What is mediation?
Mediation is a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more persons or businesses. The process is informal and non-adversarial, with the objective of helping the disputing persons reach a mutually acceptable and voluntary agreement. In mediation, the mediator has no decision making authority; that authority rests entirely with the parties. The role of the mediator is to assist the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
How does mediation work?
Once the mediator is agreed upon by the parties, the mediator will conduct conversations with all of the disputing parties. Some of those conferences may be while the parties are in the same room; some conversations will be with individual parties alone in what is called a private caucus. All conversations are confidential. Together with the parties, the mediator acts to keep the settlement conversation open in order to rreach the greatest amount of potential for a settlement agreement.
Who is the mediator?
The mediator should be a Florida Supreme Court Certified Mediator, in the discipline relevant to the dispute. For example, Steve Ellis is a Florida Supreme Court Certified Mediator in the areas of Family Law and Circuit Civil. The Circuit Civil area includes any disputes which could come before a Florida Circuit Court, which is the highest level trial court in Florida. This would include issues involving real estate, trusts, probate, guardianship, business law, and personal injury. Family Law includes, among many areas, dissolution of marriage, parenting plans, paternity, child support, visitation, child relocation, or any family dynamic dispute which may need resolution.

Steve Ellis is also specially trained in the area of Elder Mediation and Share Family Decision-Making. This is a particularly useful mediation process for families in dispute over matters relating to their elderly family members. Often, mediation in these matters will avoid the conflict involved in issues of guardianship, involuntary placement, elder residential affairs, and the particular dynamics of families in dispute or crises.

The Mediator’s role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be.

Is Mediation required in court cases?
Mediation is an entirely voluntary process. Even if you are already involved in a court case, and the Judge has ordered you to attend mediation, any agreement in mediation must still be of your own volition. No one can force you to settle. You are entitled to your day in court, if that is what you wish. However, going to court to resolve your disagreements is likely the most expensive way in which to get to the bottom of your differences. And courts often times cannot resolve all of the disputes that exist, or may continue to exist, between parties. Mediation can address not only what a court might address, but also matters which may never come to the court’s attention.
How is the mediation process confidential?
In Florida, the mediation process is confidential so long as it is either Court ordered or conducted by a Florida Supreme Court Certified Mediator. Therefore, even if the case has not been filed in Court, the parties may safely participate in mediation without concern for publication of the conversations which take place in the mediation process. One significant benefit of mediation is that it can be conducted long before the parties must file anything publicly about their dispute. This gives the parties an extraordinary opportunity to resolve their conflicts in a manner which avoids publicity, or the prying eyes of media trolls.

Furthermore, the communications that take place during mediation between the parties or participants are privileged, such that those parties or participants are prohibited from disclosing mediation communications to anyone other than the parties or participants in mediation, or their counsel. This means that the parties are prohibited by law from speaking about, even in court under subpoena, that which was discussed in the mediation conference. (There are rare exceptions to this rule, for example disclosure of a plan to commit a crime, or the existence of child abuse or elder exploitation.) Sanctions are available against anyone violating the privilege of a mediation communication or the confidentiality of the mediation process.

Where does the mediation take place?
The mediation will take place at the offices of Steve Ellis and Ellis Resolutions. Alternatively, the parties may wish to have the mediation at a location of their mutual choosing. Often, Mediation Centers or Court Reporter offices are available to facilitate the mediation. Choosing the Mediator and the location of the mediation are the first agreements which will generally lead to a mutual and voluntary agreement settling all issues in the dispute.
What happens if we reach an agreement during mediation?
Upon successful mediation of the issues presented, the Mediator will assist in drafting a Mediated Settlement Agreement which all parties will sign. If any party wishes additional time to consider the agreement, or to consult their attorney regarding the agreement, then terms for such additional time are set forth in the agreement. No agreement can be foisted upon a party. The entire process of mediation is to protect the self determination of each party to the agreement. The parties, and only the parties, can mutually agree to a settlement.
What happens if we don’t reach an agreement during mediation?
If the mediation conference is not successful in reaching an agreement during the mediation, three possibilities can occur. If the parties have reached agreement on some issue, but not others, a Mediated Partial Settlement Agreement can be drafted and signed by the parties. If the parties choose, they may continue the mediation to another date, where the mediation can reconvene and the parties can continue settlement discussions. If the parties decide that no settlement can be reached that day and they do not wish to continue settlement discussions, then the Mediator will declare an impasse.

The vast majority of issues brought before a qualified mediator are resolved in a voluntary, mutual agreement. The importance of allowing the parties to have self-determination in the resolution of their disputes is paramount. So much can be agreed to by the parties which would otherwise be outside the purview of a Circuit Judge. This creativity allowed between the parties in mediation makes this process the most likely to avoid future issues, as well as resolving present issues.

Do I need to bring my evidence to the mediation?
The mediation process is not a trial or an arbitration where an authority figure makes findings of fact or law. To that extent, it is not necessary to bring your evidence to the mediation. However, if there is evidence which you believe is determinative to your position or defense, you may bring that evidence to the mediation, as you may want it handy to provide context to the issues and the dispute.
How much does mediation cost?
The mediator generally charges an hourly rate for mediation between two parties. Often that hourly rate increases with the number of parties. The hourly rate is generally split between the parties in some fashion. In Court cases, the Judge ordinarily requires the parties to split the cost of the mediator equally. Occasionally, one party agrees to pay for the mediation up to a maximum number of hours. At Ellis Resolutions, consideration is given to elderly parties, parties on a fixed income, and veterans.
Do I need an attorney for mediation?
No. You may proceed through mediation without an attorney. If you have already retained an attorney, you should discuss mediation with her or him. They are also welcomed to call Ellis Resolutions to discuss the potential for mediation. Often, both parties are represented by counsel and both counsel attend and participate in the mediation conference with their clients. It is also possible to have just the parties mediate and come to resolutions they believe are satisfactory, and take the Mediated Agreement back to their attorneys for review.
Can the mediator give legal advice?
It is important to understand that, while your mediator may be a licensed attorney in Florida, while serving as a mediator he or she is not able to give you legal advice. When a mediator believes that a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator must advise the party to seek independent counsel. However, the benefit of having an experienced attorney as your mediator is that the mediator can share information to you which he is qualified by training and experience to provide. Under all circumstances, the mediator must comply with standards of impartiality and preserving party self-determination.
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