COLLABORATIVE LAW AND MEDIATION
Mediation and Collaborative Law are both non-adversarial methods of dispute resolution designed to help parties to voluntarily resolve issues related to their divorce instead of having the judge make these decisions for them. The goal of both methods is to encourage parties to consider their own needs and interests and enable them to make their own decisions by mutual agreement. By using such non-adversarial methods, mediators and collaborative law professionals hope to help parties maintain a constructive working relationship and reduce the emotional and financial stress of litigation.
Under Florida law, parties are permitted to choose either or both methods to resolve disputes. While similar in many ways, there are also major differences between the two.
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 parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties…” [Florida Statute 44.1011(2)]
Collaborative Law, on the other hand, is “a process intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” [Florida Statute 61.56(4)]
2. Role of Lawyers:
Mediation: While hiring an attorney to help negotiate and/or review legal documents can be invaluable, parties are free to engage in mediation without being required to hire an attorney. If they do hire attorneys, their attorneys can participate in mediation and also continue to represent them if the case does not get resolved in mediation and ultimately goes to trial. Although it is possible for financial and mental health professionals to participate in mediation, it it is more likely that they don’t attend mediation.
Collaborative Law: Parties wishing to utilize a collaborative law process to resolve their divorce must hire attorneys and in some cases will also be encouraged to hire financial and mental health collaborative professionals to assist in the collaborative law process. Generally, if either party chooses to proceed with litigation, both attorneys are prohibited from representing the divorcing couple during the divorce trial and, in that event, each party must hire a new attorney or proceed to trial without an attorney. [Florida Statutes 61.57(3)]
Mediation: Parties who are court referred to mediation or who use a Florida Supreme Court certified mediator are assured that their mediation communications cannot be disclosed to the judge or anyone who didn’t participate in the mediation other than a party’s attorney, unless the communication falls under an exception to Florida Mediation Confidentiality and Privilege Act. Other professionals involved in the process do not have a privilege to prevent the parties from disclosing to the court what the professional communicated verbally or in writing if both parties agree to do so. [Florida Statutes 44.401 – 44.406]
Collaborative Law: In collaborative law, the parties cannot disclose collaborative law communications to the judge unless the communication falls under an exception to the collaborative law privilege. Also, non-party participants, such as collaborative financial and mental health professionals, may prevent any other participant in the collaborative law process from telling the court what was communicated verbally or in writing by a collaborative professional even if the parties both want to tell the judge, unless it falls under one of the exceptions to the Collaborative Law Process Act. [Florida Statute 61.58]. The Collaborative Law Process Act (Florida Statutes 61.58) permits the parties and professionals to agree that the process will be confidential, which is generally done. If the parties do not voluntarily agree that the process is confidential, the Florida statute allows the parties and professionals to disclose collaborative law communications to friends, employers, on social media, etc.
4. Training Standards and Certification:
Mediation: Florida Supreme Court certified Family Mediators must have successfully complete forty hours of family mediation certification training in a Florida Supreme Court approved mediation certification training program, have a Master’s Degree or higher* (such as a JD, PhD, MD, Ed.D., etc.), observe or co-mediate a prescribed number of family mediation cases with a Florida Supreme Court certified Family Mediator, and have good moral character. [Florida Rules for Certified and Court-Appointed Mediators 10.100 - 10.130]
Collaborative Law: There is no state licensing or certification for Florida licensed attorneys to practice as collaborative lawyers and there is no state or court prescribed training for other types of professionals to hold themselves out as collaborative professionals or participate in the collaborative law process. While many collaborative lawyers and collaborative professionals do voluntarily take collaborative law training and/or mediation training, they are not required by law or rule to do so.
*In some situations, the advanced educational degree requirement may be waived for individuals who possess a bachelor’s degree and have mediated 100 cases within five years or have obtained a graduate certificate in conflict resolution.
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