In order for a Florida Family Law mediation to result in a Mediated Settlement Agreement, our Florida Supreme Court Certified Mediators at Mediation of Coral Springs, Inc. have found that both spouses must show up to the mediation fully informed about all of their financial issues, both assets and liabilities; as well as more importantly be willing to mediate in “good faith”.
But what is the meaning of the phrase – good faith? In essence it means to act honestly and negotiate in a fair manner towards the other party. However, there is no legal requirement that the parties who participate at mediation for a Florida Dissolution of Marriage cause of action do so in good faith. In fact, the only requirement (outside of certain documents that have to be served on the other party at or prior to the mediation) is that each party physically appears at the time and place that is specified for mediation. Once mediation begins and after the mediator gives his opening statement, a party can announce that he or she will not be agreeing on anything. Other than making certain this is truly the parties’ position, the only thing that the mediator can do is file a report with the Court that states that both parties appeared and there was an impasse or that no agreement was reached.
A legal requirement that the parties shall mediate in good faith would be contrary to Florida Rule for Certified and Court-Appointed Mediators 10.300 which provides that “1) the purpose of mediation is to provide a forum for consensual dispute resolution by the parties, and 2) the mediator must honor the parties’ right of self-determination, must act with impartiality, must preserve confidentiality, and avoid improper influence or coercion.”
Any attempt by a mediator to report to a Florida Family Law Judge that a party was not acting in good faith would require to the mediator to evaluate how that party was conducting him or herself during the mediation. In doing so, the mediator would violate every part of subsection 2 of Rule 10.300 which is cited to above.
Although there is no requirement that the parties mediate in good faith, Mediation of Coral Springs, Inc. makes a strong attempt to convince each party at the onset of mediation that there dispute is best resolved if they can just put forth their best efforts to deal with each other in a fair and honest manner.
Our Florida Supreme Court Certified Mediators take the Florida Rules for Certified and Court-Appointed Mediators very seriously and are cognizant that there are very few exceptions as to what a mediator may disclose from communications that took place during mediation.
Florida Statute §44.405(4)(a) of the Mediation Confidentiality and Privilege Act, provides that “a party’s conduct may or must be disclosed if it is 1) with the consent of the parties; 2) ‘willfully used’ to plan or attempt to conceal criminal conduct; 3) requires a report regarding abuse of children or elderly persons, 4) offered in a professional malpractice action; 5) for the purpose of refuting, amending, or voiding a settlement agreement; and 6) offered to report, prove, or disprove professional misconduct during the mediation, solely for the internal use of the body conducting the investigation of the conduct.”
If you have any questions about good faith mediations and/or what can be disclosed from a mediation session, please feel free to contact Mediation of Coral Springs, Inc.