Eldercaring Coordination and Mediation are both methods of dispute resolution designed to help parties resolve issues related to their divorce or other family matters outside of court instead of having the judge make these decisions for parties. The goal of both methods is to encourage parties to consider their own as well as their family's needs and interests and enable them to make their own decisions by mutual agreement. By using such non-adversarial methods, Mediators and Eldercaring Coordinators work to help parties maintain a constructive working relationship and reduce the emotional and financial stress of divorce litigation.
Under Florida law, parties are permitted to choose either or both methods to resolve disputes. While similar in many ways, there are also important differences between the two.
1. Definition of the Process
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)]
Eldercaring Coordination "means an elder-focused dispute resolution process during which an eldercaring coordinator assists an elder, legally authorized decisionmakers, and others who participate by court order or by invitation of the eldercaring coordinator
in resolving disputes regarding the care and safety of an elder by:
1. Facilitating more effective communication and negotiation and the development of problem-solving skills.
2. Providing education about eldercare resources.
3. Facilitating the creation, modification, or implementation
of an eldercaring plan and reassessing it as necessary to reach a resolution of ongoing disputes concerning the care and safety of the elder.
4. Making recommendations for the resolution of disputes concerning the care and safety of the elder.
5. With the prior approval of the parties to an action or of the court, making limited decisions within the scope of the court’s order of referral." Florida Statute 44.407(2)(d)
2. Self Determination
Mediation: In mediation, the parties are the ultimate decision makers and the mediator is prohibited from making decisions for the parties. [Rule for Certified and Court Appointed Mediators 10.310]
Eldercaring Coordination: While the eldercaring coordinator sometimes facilitates negotiation between the parties, an eldercaring coordinator can serve in other capacities such as making recommendations to the court and, with party and court consent, making certain non-substantive decisions for the parties.
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. [Florida Statutes 44.401 – 44.406]
Eldercaring Coordination: Generally, all communications made by, between, or among the parties and the eldercaring coordinator during eldercaring coordination sessions are confidential and privileged. Generally, the eldercaring coordinator and each party designated in the order appointing the coordinator may not testify or offer evidence about communications made by, between, or among the parties and the eldercaring coordinator during eldercaring coordination sessions. However there are many exceptions to the confidentiality and privilege communication protections. [Florida Statute 44.407(9)]
4. Training Standards and Certification
Mediation: Florida Supreme Court certified Family Mediators must have 1) successfully completed a forty-hour Florida Supreme Court approved family mediation certification training, 2) have a Master’s Degree or higher* (such as a JD, PhD, MD, EdD, etc.), 3) observe or co-mediate a prescribed number of family mediation cases with a Florida Supreme Court certified Family Mediator, and 4) have good moral character. [Florida Rules for Certified and Court-Appointed Mediators 10.100 - 10.130]
Eldercaring Coordination: Qualified eldercaring coordinators must 1) have three years experience as a licensed mental health professional, physician, nurse, attorney, or be a Florida Supreme Court certified mediator or professional guardian and hold a master's degree; 2) successfully complete a Florida Supreme Court approved family mediation training program; and 3) successfully complete a Florida Supreme Court approved eldercaring coordination training program. [Florida Statute 44.407(5)]
5. Florida Standards of Professional Conduct
Mediation: The Florida Supreme Court has adopted Rules for Certified and Court Appointed Mediators that includes Standards of Professional Conduct for mediators and a disciplinary process for hearing complaints against mediators.
Eldercaring Coordination: Eldercaring Coordination is quite new and the Florida Supreme Court has not yet adopted Rules for Qualified & Court-Appointed Eldercaring Coordinators.
*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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