Frequently Asked Questions
Each mediator has her/his own style and approach. These answers are given by Brian Florence which reflect his views and personal style. Other mediators may answer these questions differently.
- What is mediation?
- How much does it cost?
- How long does it take?
- How successful is mediation?
- Why can mediation be successful?
- Should my attorney be present at the mediation?
- How does a mediation session work?
- Are mediated agreements binding?
- Am I required to sign anything to start the mediation?
- What if there is a restraining or protective order in place?
- Can non-parties be present at the mediation?
- Can the mediation meeting be audio-taped
- Are there any special requirements when parenting rules are in dispute?
- When should mediation occur?
- What should I bring to mediation?
- Are there other dispute resolution processes besides mediation that do not involve litigation?Â
- What is Brian Florence's experience?
Mediation is the intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no authoritative decision-making power, to assist contending parties to voluntarily reach their own mutually acceptable settlement of issues in dispute.
Mediation-the parties must both agree to this process (unless it is court ordered), and they must expect to have a dialogue about their area(s) of disagreement.
Intervention-this is the assumption that an outsider will be able to alter the power or dynamics of the parties behaviors.
Acceptable-the parties approve of the presence of the outsider.
Impartial-the mediator has no attitude about the problem in dispute.
Neutral-the mediator has no relationship with or bias towards any of the disputants.
Brian Florence charges $160.00 per hour. It is generally split equally between the parties, so if there are two parties, each will pay $80.00 per hour. It is to be paid at the end of each session. Credit cards are not accepted.
Unless requested otherwise, mediation sessions are scheduled for 3 hour blocks of time. Requests will be honored for less time or even full day sessions. You are in control.
With the 3 hour sessions, one of three things always happens:
- You reach an agreement. The speed with which that happens is up to you.
- You do not reach an agreement. The speed with which that happens is also up to you.
- You run out of time but are pleased with the progress that is made and you like the process and schedule another appointment.
There are no specific studies on this question and it is hard for the mediator to know if the agreement holds after the parties leave mediation but for Brian Florence personally, in 80% of all mediation sessions, the parties leave his office with an agreement.
Why can mediation be successful?
Parties do not have to change their beliefs about their positions or their view as to the problems of the past. Reaching a mediated agreement means agreeing on arrangements for the future. It does not mean agreeing on perspectives, interests or values or any of the "reasons why" for the agreement.
Because of this, parties can in fact reach a mutually acceptable solution that is not tied to either of them having to convince the other that he or she is "wrong", or that the agreement is fair. Each person retains the right to have his/her own view as to what's "fair".
Should my attorney be present at the mediation?
That is up to you and your attorney. Generally, if one party wants her/his attorney present, the other attorney will be present also but there are times when only one lawyer is present. Each party needs to feel safe and that any decision made in mediation is based on complete information. This typically includes an assessment as to how a "court ordered" outcome might compare to the mediated proposal under consideration.
Brian Florence has no preference as to whether attorneys are present although it has been his experience that if the issues are typically limited to legal disputes (as opposed to factual or emotional) or it is just a matter of money, then the presence of attorneys is helpful.
If attorneys are not going to be present, it is strongly recommended that the client be well prepared to consider a full range of settlement options and have a good understanding of their best and worst case scenarios.
How does a mediation session work?
All mediation sessions conform to the needs of the parties, the issues in dispute and the emotional attitude of the parties. Therefore, there is not one exclusive process. Each party has to have their individual needs met and the mediator should be prepared to adopt a style and process that will work for both parties. The mediator is not there to be "persuaded". He does not "choose a side". He makes no judgment as to who may be telling the truth (when that is in dispute) nor does he make an evaluation as to which position may have more merit.
The mediator needs to be informed as to the issues in dispute and to how each side would like to have those issues resolved. Typically each party (or their attorney) will make this presentation. After the mediator is informed as to the goals to be achieved, discussions occur on each issue and potential agreements considered. The parties are then encouraged to negotiate and may settle each issue "one at a time" or lump them together as part of a "package deal."
As a general rule, all mediation sessions begin with all parties (and their lawyers) present in the same room. From that point, parties can decide whether they would prefer being separated or whether it will be more effective to remain together. These options will be discussed in mediation.
Brian Florence will presume that the mediation session is going to adopt the "integrative" or facilitative mediation style. In this process the parties are encouraged to follow "Process Anchors."
Mr. Florence is also willing to conduct "transformative" mediation sessions, but those are highly emotional and parties should discuss this potential process in advance with Mr. Florence. No transformative mediation will occur without both parties knowledge and consent. Typically, transformative mediation will not involve attorneys and will take longer.
Are mediated agreements binding?
Not until formally signed by the parties. The mediator will prepare a Memorandum of Understanding and send that to the parties and their lawyers. If the lawyers have not been present during the mediation, they will then consult with their client about the implications of the agreement reached in mediation. If the lawyer and client then ratify the mediated agreement, one of the lawyers will then follow that Memorandum and prepare the formal legal document for filing with the Court.
Arrangements can be made to have the mediated agreement binding at the conclusion of the mediation but this will only occur if both parties fully understand the implications of doing that and if lawyers are involved, it must included their concurrence.
Am I required to sign anything to start the mediation?
Yes. See Brian Florence's "Agreement to Mediate" at that page in this website. There are two. One agreement is related to family disputes when children are involved. The other agreement covers non-family disputes.
What if there is a restraining or protective order in place?
The mediator should be informed about the existence of any such order, well in advance of the mediation. Most judges are of the opinion that being together at a mediation session is not a violation of a restraining or protective order. It would be a violation if any threats of, or acts of physical violence were to occur. Brian Florence will help assure that each side's interest is protected and that all parties can feel safe. He insists that parties leave separately following mediation whenever an order of this nature is in effect.
If you have any additional concerns or questions, you should consult your lawyer.
Can non-parties be present at the mediation?
So long as all parties agree, Brian Florence has no objection to non-parties being present. If there is an objection by one party or the other, it is Mr. Florence's rule that non-parties not be present unless that non-party is essential to the decision making process.
Non-parties can come for moral support but they will be asked to remain outside of the joint meetings. If parties decide to separate, non-parties are permitted to join while meetings occur in separate caucuses.
Can the mediation meeting be audio taped?
No. Mediation sessions are confidential and absent agreements which are intended to be reduced to a Court Order, nothing that occurs in mediation may be used or commented upon in Court. Accordingly, there is no reason to record what occurs in mediation. The mediator will provide a written explanation (Memorandum of Understanding) of any agreements reached in mediation. If no agreements are reached, the mediator will also provide a written explanation of that to the parties and their lawyers.
Are there any special requirements when parenting roles are in dispute?
Yes. The parents will be asked to review my introduction letter and use an interactive website www.UpToParents.Org to better prepare them for discussions concerning their parenting rights and responsibilities. See "Parent Disputes" page at this website.
Mediation can be effective at any time during the course of a lawsuit or dispute. Some contracts may require mediation before a lawsuit can even by filed. It is never too early to resolve a dispute.
As a general rule, mediation will not be successful unless both parties have all information that would be necessary to permit making an informed decision. Sometimes mediation can be used to obtain information or agree on how information will be obtained.
By the same token, it is never too late to resolve a dispute. It is normally thought that sooner is better, but too soon can also prevent resolution.
What should I bring to mediation?
The mediator will not be making a decision and so it is not necessary that you feel as if you have to persuade or provide convincing proof of your view on any issue to the mediator. If bringing information will help the other party understand your position or help them be better equipped to make a decision, then that is information you should bring to mediation.
Are there other dispute resolution processes besides mediation that do not involve litigation?
Yes. There is:
Collaboration: Collaborative law is a process in which the parties and their counsel agree in writing to use their best efforts and make a good faith effort to resolve their dispute by agreement without resorting to judicial intervention except to have the court approve the settlement and sign orders required by law to effectuate the agreement of the parties. If the process fails, the parties counsel who assisted in the collaborative process may not serve thereafter as litigation counsel. For further information on the collaborative process, go to www.collaborativefamilylawofutah.com.
Arbitration: Arbitration can be binding or non-binding. A mutually acceptable arbitrator is selected by the parties (and their counsel). The dispute is presented to the arbitrator who is empowered to make a decision. The manner in which the dispute is presented to the arbitrator can be mutually decided but generally involves a process much less formal, more relaxed and quicker than litigation.
If the arbitration is non-binding, then either party can ask that the matter be re-tried to a Judge and the arbitration decision would have no binding effect on either party or the Judge who subsequently re-hears the matter.
If the arbitration is binding, then any dissatisfied party can appeal to an appellate court but only on the grounds of abuse of discretion.
What is Brian Florence's experience?
Refer to "About Brian Florence".
To get more information or contact Brian Florence you can call (801) 476-3200 or email to attyflo@aol.com.
