Friday, March 10, 2006

If It’s In Black And White, It Must Be . . . Gray!

Although the main issue in Daniel v. Daniel, 2006 Fla. App. LEXIS 3321[Fla. 4th DCA 2006] was whether the trial court lawfully ordered the husband to file a financial affidavit in this non-simplified dissolution of marriage action [the answer is yes], the Fourth District Court of Appeal’s recitation of the mediation facts teaches us that which we already know – the rules must be followed!

The mediation agreement provided that it is “intended to be a full, final and binding settlement of all issues” in the case and that there had “been full and complete disclosure of all marital assets and liabilities.”

The day after the court entered an order approving the mediation agreement, the Wife filed a motion to set the agreement aside claiming, among other things, that there had been no “full and frank disclosure” of the assets because the Husband had not filed a financial affidavit. In a second motion to set aside the mediation agreement the Wife alleged that the mediation left her “physically and emotionally exhausted” and that a financial affidavit was mandatory because the mediation agreement contemplated “permanent financial relief.”

Context is important. Florida Family Law Rules of Procedure, Rule 12.285(a)(1) requires the filing of a financial affidavit, a “requirement [that] cannot be waived by the parties.”

All to say, just because the mediation agreement recites that there was full disclosure, in the absence of the filing of a financial affidavit what appears to be black and white is, well – gray! Be careful in drafting the mediation agreement. Mediators have an ethical obligation to the parties in “assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(a), Self-Determination, Decision-making, and further, “[a] mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(c), Misrepresentation prohibited.

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