Alternative dispute resolution and settlement

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 1255-1362

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CHAPTER 18

Alternative Dispute

Resolution and Settlement

QUICK VIEW

In the 1980’s the concept of mediation was introduced to Florida. Now, mediation is the primary and preferable

path—or is required in some counties—in a family law case, in conjunction with case management conferences

to facilitate mediation and settlement. Allowing parties to retain their personal power to make decisions that

impact their family with the assistance of a neutral facilitator is far better than allowing a judge to tell parties

what to do. Mediation requires a commitment by the family lawyer to the process of alternative dispute reso-

lution and his or her primary role as counselor and advisor, rather than to the role as advocate in a litigation

mode. The legal system should focus on the needs of children who are involved in the litigation, refer families

to resources that will make their relationships stronger, coordinate their cases to provide consistent results, and

strive to leave families in better condition than when they entered the system. There will be a new and more

important problem-solving role for lawyers as they adapt their practices to these ideals.

The family lawyer’s focus is as a transactional lawyer with the primary goal of discovery as full f‌inancial disclo-

sure to prepare for mediation, amicable resolution, and an uncontested f‌inal hearing. Elimination of emotional

barriers and impairments to this before beginning the legal process is a part of the lawyer’s function. Discovery

compliance is required in uncontested as well as contested family law cases.

TABLE OF CONTENTS

I. OVERVIEW

A. Basic Points

§18:01 Reality of Family Law Litigation

§18:02 Therapeutic Justice—Mediation and Settlement

§18:03 Society’s Interest in Ending Discord Among Family Members

§18:04 Florida Supreme Court’s Goals

§18:05 Attorneys’ Responses

§18:06 Impact of Duty of Candor

B. What Family Court Judges Know

§18:10 Lawyers’ Control in New Family Court System

§18:11 Case Control by Court

§18:12 Importance of Reality Training

§18:13 Clients Cannot Pick “Good” Lawyers

§18:14 Settlement Is More Lucrative Than Trial

§18:15 Judicial Shifting of Burdens in Florida Family Law

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§18:16 Client’s “Day in Court” Can Backf‌ire

§18:17 Best Practices Identify Best Family Lawyers

§18:18 Remediate With a New Lawyer on the Case

II. ALTERNATIVE DISPUTE RESOLUTION GENERALLY

A. Alternative Dispute Resolution

§18:30 Overview

§18:31 Certif‌ied Accountant Mediator

§18:32 Certif‌ied Therapist Mediator

§18:33 Parenting Coordinator Model

§18:34 Parenting Coordinator Statutory and Rule Provisions

§18:35 Team Approach

§18:36 Family Law Arbitration Distinguished; Ethical Conf‌lict

§18:37 Collaborative Law Process

B. Rules for Certif‌ied and Cour t-Appointed Mediators

1. Mediation Process

§18:50 Scope and Purpose of Rules

§18:51 Mediator’s Responsibility to Parties

§18:52 Self-Determination

§18:53 Nonparticipating Persons

§18:54 Impartiality

§18:55 Conf‌licts of Interest

§18:56 Demeanor

§18:57 Conf‌identiality

§18:58 Professional Advice or Opinions

§18:59 Mediator’s Responsibilities

§18:60 Balanced Process

§18:61 Conduct of Mediation

§18:62 Fees and Expenses

2. Mediator Disciplinary Process

§18:70 In General; Filing of Complaint

§18:71 Committee’s Action on Complaint

§18:72 Notice to Mediator

§18:73 Mediator’s Response

§18:74 Committee’s Review of Complaint and Response

§18:75 Determination of Probable Cause

§18:76 Referral of Formal Charges

§18:77 Hearing Procedures

§18:78 Disposition After Hearing

§18:79 Conf‌identiality of Proceedings

§18:80 Burden of Proof

§18.81 Sanctions

C. Additional Legal Framework

§18:90 Statutory Def‌initions

§18:91 Mandatory Mediation of Parenting Plan, Including

Time-Sharing Schedule or Other Parental Responsibility Issues

§18:92 Communication Privileged

§18:93 Guardian Ad Litem Participation

§18:94 Family Mediation Under Florida Family Law Rule of Procedure 12.740

§18:95 Related Matters Under Florida Family Law Rule of Procedure 12.741

D. Mediation Skills and Techniques

1. In General

§18:100 Knowing and Recognizing Perceptions of Marital Bargain

§18:101 Verbal and Nonverbal Communication Strategies

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§18:102 Focus on Future

§18:103 Focus on Common Interests and Goals

§18:104 Focus on Problem Solving

§18:105 Focus on Action

§18:106 Focus on Win-Win

§18:107 Focus on Cost of Not Agreeing

2. Dealing With Parties’ Emotional Dissolution Issues

§18:120 Process Is as Important as Resolution of Issues

§18:121 Open-Ended Listening

§18:122 Determine Stage in Emotional Dissolution of Marriage

§18:123 Determine Motive, Intent, and Outside Inf‌luences

§18:124 Focus and Calm

§18:125 How to Deal With Angry, Obstructionist Behavior

§18:126 Write It Down

§18:127 Agreements to Agree; Conditional Agreements

E. Effective Role of Family Lawyer in Mediation Process

§18:140 Practice Changes

§18:141 To File or Not to File; Presuit Mediation Consideration

§18:142 Emphasis on Solving Problems Instead of Taking Positions

§18:143 Case Management Conferences Rather Than Adversary Motions

§18:144 Work Around Impasse

§18:145 Withdraw Rather Than Become Invested in Litigation

§18:146 Become Transactional Deal Maker

§18:147 Know Mediation Techniques, Skills, and Responsibilities

§18:148 Expedite Mandatory Disclosure for Both Sides

§18:149 Eliminate Barriers to Amicable Resolution

§18:150 Use Mediation as Process, Not Single Event

§18:151 Cooperate With Opposing Counsel

§18:152 Save Fees and Costs

§18:153 Share Court-Appointed Experts

III. PATH TO MEDIATION AND ENTERING INTO MARITAL SETTLEMENT AGREEMENT

A. When, Why, and How

§18:160 Initial Client Conference

§18:161 Importance of Financial Aff‌idavit

§18:162 Avoid Common Mistakes

§18:163 Strive for Accuracy

§18:164 Use Acceptable Format for Aff‌idavit

§18:165 Mandatory Disclosure

§18:166 Child Support Guidelines Worksheets

§18:167 Parenting Courses

§18:168 Required Reading and Homework

§18:169 Dealing With Respondent

§18:170 Communication Guidelines

§18:171 [Reserved]

§18:172 Counseling and Reconciliation Period

§18:173 Meeting in Month

§18:174 Discovery

§18:175 Presuit Mediation or Voluntary Nonbinding Arbitration

§18:176 Mediation: Florida Law Impact

§18:177 Non-English-Speaking or Illiterate Client

B. Process Management

§18:190 Before First Mediation Session

§18:191 Client Preparation