Mediation is powerful – it provides disputing parties with opportunities to craft outcomes tailored to their unique needs and circumstances in ways that neither judge nor jury can develop via decision or verdict. However, there are limits as demonstrated by the First District Court of Appeal in Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 [Fla. 1st DCA 2006]. Although these were not mediation agreements, the several agreements entered into by this same sex couple providing for co-parenting for two children born to one of them as a result of sperm donation, were creative, tailored and unenforceable. Under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and agreements providing for visitation by a non-parent are unenforceable.
The concurring opinion urged the legislature to address the needs of children born into or raised in non-traditional households when a break-up occurs.
I wonder, if someone can waive their right to an attorney during in-custody interrogation or otherwise waive their Fifth Amendment privilege against self-incrimination, can they waive their constitutional right to privacy in a mediation agreement? What do you think?
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