What Can And Cant Be Mediated

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

(00:16):
Hi, and welcome to another episode of Mediate This. I had a listener write in and ask Matthew what can and what cannot be mediated. So, um, let me first start with what can be mediated. Um, everything, everything can be mediated. So let me define everything. I have mediated small claims issues. So say for example, let’s say landlord tenant issue, I have mediated, um, small business issues. So issues between maybe a consumer and, uh, a retailer. I have mediated issues between employee and employer. I have mediated issues between, um, an insurance company and one of their insured. I have mediated issues regarding foreclosure actions of a home between an owner and the bank. I have mediated, uh, collection issues, so a collection company, uh, versus, uh, someone who’s run up credit, uh, and is unable to pay. I have mediated, of course, family issues. So paternity actions, uh, modifications of paternity, child support.

(01:36):
Um, I have mediated family issues, uh, such as divorce, uh, modifications of divorce, child support issues, alimony issues, time sharing issues. Um, I even have mediated contempt issues, which that I always thought was one of those things that cannot be mediated, but apparently it can. Um, now granted in a motion for contempt enforcement, then I am not a judge. I cannot make a finding and find that that person a violated or was in default or in contempt of an agreement. Um, I don’t have that kind of power. I’m not a judge, but, um, I have mediated a potential violation where maybe somebody did violate it, but nobody has made a finding yet, and we were able to mediate whatever the issue was that was violated in order to keep them outta court, save them attorney’s fees, um, and, you know, get past whatever, whether it was clarification or a modification so that they could avoid, um, having that issue again and also avoid having to go to court.

(02:51):
So, you know, contempt was one of those things that I always thought could not be mediated, uh, but I have mediated it. In fact, I’ve even had judges order a party to mediation to negotiate a settlement. Um, when a motion for contempt was filed, I thought that was very odd. I thought, well, if somebody violated an agreement, they file a motion for contempt, they go in front of the judge, the judge makes the decision whether or not they did or did not, uh, violate the agreement. But the judge actually said, you know what? I’m not gonna decide this yet. Go to mediation and try to resolve the conflict, and if you can’t, well then fine come back and I will then, uh, decide if somebody violated it and then decide whatever, uh, repercussion is going to happen. But in the motion for contempt enforcements that I have been given to mediate, we actually were able to successfully create a negotiation, uh, settlement where they were able to avoid court, uh, and an actual finding of contempt, and they were able to move on peacefully.

(03:53):
So that was something interesting of what can, uh, versus what I even thought could not be, uh, mediated. Um, I have mediated issues that, um, are pre-filing. So say for example, that a husband and wife are in, uh, marriage counseling, and so their therapist or the marriage counselor or pastor, whoever it might be, has actually said, go to Matthew, go through a divorce mediation so that you guys can see what reality is going to look like if you do not pay attention to your marriage. As we are working on, um, preserving the relationship and keeping the marriage intact. That way, if they end up not doing what is, uh, they should do in order to preserve the marriage, they have a clearer understanding of what the results are, what, uh, everything is gonna be, whether you know, what the time sharing may be, what child support might be, uh, if there might be any alimony, what’s gonna happen to their home, their retirement.

(04:59):
Like they get a very good snapshot of what is going to happen. Um, so something else that I have, um, mediated is I have mediated, uh, prenuptial agreements. So there’s a prenup, and so, you know, what is inside the confines of that agreement? Well, that stands, but, uh, if there’s something that was not addressed in the, uh, prenuptial agreement, well then we negotiate that. I have also, uh, negotiated postnuptial agreements. So agreements that were created after they got married, after a couple got married, then they created, uh, an agreement, and now they’re getting divorced. And so whatever is, uh, not addressed in the postnuptial agreement, then we are able then to negotiate and hopefully create a settlement on. Um, so, uh, I have also, um, negotiated between, um, a teenager and a parent. So nobody has filed anything. I mean, like, they’re not married, it’s not a paternity action, but you know, it’s family issues.

(06:03):
And so they have said, Hey, can you come in and help us communicate, help us be able to work through these issues? In fact, I actually, um, was asked by my ex-wife and my adult son, so he was even emancipated. Um, and there was no court order, there was nothing there, but my adult son was living with his mother. They were having a lot of communication issues, and so they asked me to actually help them negotiate. And so we met for two sessions. The first session was basically a controlled burn where, um, I really just facilitated their communication so that they weren’t yelling at each other, um, to the point where, you know, it got bad or they shut down, walked away without any resolution, uh, was able to help them reframe, uh, what was being said so that, uh, both of them clearly understood what the other one was saying.

(07:05):
Um, and so, uh, it was a controlled burn, uh, is what I would call it, allowing them to communicate, get everything off their chest. What was interesting was when I do, uh, mediations like that, I know when we’re done, and that is when people start to repeat themselves. Because when they then start circling around and they just start repeating everything they’ve already said, well, then they’ve run out of things to say, and now it feels like a time killer. And so they’re now just wasting time and breath. And that usually also is when people get frustrated because it’s like, you already told me that. And they’re like, yeah, but you, I don’t think you heard me the first time. And yes, they did. It is just that, you know, they’ve run out of things to say, so they circle the wagons and start again. And so at that point, with my ex-wife and my son, I knew that they were done.

(07:56):
They had gotten everything out. There was nothing left to say. And so then based on, uh, everything that they had said, I sent them away with homework. And I said, look, you guys need to go away, take a couple of days and you need to come back with, uh, the top 10 issues that you guys are having. Um, and for every single issue that you’re having, what I suggested for them, as I said, come back with three potential solutions for each of the issues that you guys are having. And that way it’s not just we’re coming to the table complaining, but we’re coming to the table with our complaints and potential solutions to negotiate. And so they did. And so we ended up meeting and we went through their top 10 list. And as we went through each issue, then both of them presented three different potential solutions, and they were able to then negotiate which solution they both could live with on each potential issue.

(09:05):
And even though this doesn’t get filed with the court, um, what I did was I then, uh, had sat there with my laptop and I typed everything out. I uploaded it to DocuSign, they both electronically signed it, got a copy of it, and then they both were able to then print that out, have it electronically and constantly refer to it so that the rules were there. Because in any type of a relationship, whether it is a paternity action, whether it is a marriage, whether it is even parent, child, there are no rules, accountability, responsibility, or consequence inside the confines of that relationship. And only rules accountability, responsibility and consequence happen in a paternity action or in a marriage when a divorce or paternity action is filed. And then they get their paternity agreement, mediation, settlement agreement, and their parenting plan, and everybody gets rules, accountability, responsibility and consequence.

(10:05):
Or in this particular case, um, my ex-wife and my son created their own rules that had their own accountability, responsibility and consequence, and it was up to them to live up to it and to, uh, hold themselves accountable in each other. But no court of law, no, uh, legal establishment was gonna force it, but at least the rules were clear. Um, and that helped them navigate their relationship so that it wasn’t just a free for all and constant misunderstandings and uh, and whatnot. So, um, I’ve done, I did one for a friend of mine with her daughter. Uh, they were having a lot of issues, and so their teenage daughter and I, and I sat down and I was able to help them, um, listen to each other, communicate with each other, give them some communication and listening skills, um, so that they could, uh, move forward with their relationship until, you know, their daughter graduated high school and went to college.

(11:01):
And, you know, the relationship is good now, and, uh, sometimes people just need some tools and some direction, and so that is something else that can be mediated as well. So, you know, I mean, there’s not much really comes to mind that cannot be mediated because everything can be mediated. Um, I have even mediated, um, with family and, you know, um, after a family member has died and then, you know, the family’s all at odds over the, uh, the will that was left. And even though we’re not negotiating the will, the will is, the will is the will, but there’s a lot of issues in the family. And so they have, uh, asked me to come in and help them all talk through their issues, work through those issues to try to gain some sort of peace because even though the, uh, the matriarch had died, uh, all the subjects, all the people, all the siblings and grandchildren and cousins, they’re still living, they’re still on this earth, they’re still interacting, they’re still holidays.

(12:14):
And to be able to work through those issues so that they can peacefully coexist, um, was their goal. But there was nothing legally to do. There was nothing that, you know, they could file with a court to make somebody else come, uh, to the table and negotiate. So, um, I guess, you know, to the listener that asked what can and can’t be mediated to me as a mediator, everything can be mediated. It’s just a matter of do you want to, uh, negotiate with the other side? Do you want to create peace? Do you want to have, um, control over, uh, outcomes or, you know, there are times where people say, look, you know what? This can’t be mediated. We need a judge. Um, one thing that some people do say, well, it can’t be mediated, which it can, but it creates a stalemate, uh, a lot of times is a relocation action.

(13:11):
Say for example, that, you know, there’s a divorce and or paternity action and they, you know, under Florida statute, and it’s important to know what the statute is, is, uh, in your state, but under Florida statute, um, if you wanna move more than 50 miles as the crow flies away from, from a particular parent, then you would need the permission from the other parent or the court. And so a lot of times one of the parents will say, no, you know, you can’t do that. And so it does require court intervention, but the court is still going to order them to mediate, to try to find if there is anything that can be negotiated in order for, um, that to take place. Another issue that, um, sometimes cannot be mediated is a modification of alimony. Um, of course, you know, if a receiver is getting alimony, they don’t want it to end.

(14:06):
Now there might be legal basis for it to be reduced or terminated, but they’re not voluntarily gonna be like, oh, okay, then yeah, I’m just gonna give it up. They’re gonna say, well, a court’s gonna have to order it, which a court may order that it be modified or terminated. And so, you know, they will have to eventually go to court, but the court’s still gotta tell them, go to and try to mediate this first. The court wants everything to be mediated. They want the people to take control of their own lives. They do not want to step in unless they have to. But when it comes to a modification of alimony or a relocation, a lot of times I refer to it as the ultimate game of chicken. Somebody is going to blink or it’s not happening. Um, but it can still be mediated.

(14:52):
I’ve still mediated those things. One of the last things I’ll touch on that sometimes people say can’t be mediated is school boundary. Um, you know, one parent may want their address, another parent may want their address, they’re stuck in their positions. They’re not budging. They don’t care what the statistics say. They don’t care what the school ratings are. They just simply want what they want. They believe what they want to believe, right or wrong. And so a judge does have to actually come in and be the final decision maker, but the judge is still gonna order mediation. It’s still part of the parenting plan to be mediated. So while it can be mediated, sometimes people say, no, this issue can’t be mediated. Only a judge can decide that. And if that’s their choice, a judge will decide that. So hopefully that explains, uh, the question of what can and can’t be mediated, and I look forward to more questions in the future.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q&A bonus episodes where we’ll answer your questions and give you a personal shoutout.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.