Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420, Conduct of Mediation, (c) Closure, provides “The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the parties and counsel the process for formalization and implementation of the agreement.”
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinions, (b) Independent Legal Advice, provides “When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent legal counsel.”
In the Fourth District Court of Appeal case of Matos v. Matos, 2006 Fla. App. LEXIS 1162 [Fla. 4th DCA 2006], the pro se parties went to a lawyer-mediator to work out a “settlement.” The husband moved to enforce the oral “marital settlement agreement.” The mediator testified that the parties came to her after they reached an informal agreement which she was to reduce to writing. Although nothing was in fact written down, the mediator thought that the parties came to an agreement. Moreover, she stated that she was not a constant participant in the negotiations.
There’s much more to the underlying facts in this case, which is worth reading, including domestic violence and financial disclosure issues. The appellate court reversed the final judgment and remanded the case for a new trial on the issue of division of the marital assets and alimony.
What, if anything, might have been different if the parties’ agreement was reduced to writing and the rules above complied with? Given the lawyer-mediator’s testimony, was this really a mediation? What do you think?
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