Quick info: What is mediation?
Mediation is normally required in all Florida court cases. A neutral, unbiased mediator meets with both parties and their attorneys (if they have attorneys). The process is confidential. The goal of mediation is to produce a negotiated settlement agreement that will end the case. A majority of court cases filed in Florida are successfully settled at mediation. The mediator has no decision-making authority. The power to settle, or not settle, is solely in the hands of both parties to the case.
A Florida mediator can help a divorcing couple settle their disputes without the need for a judge. Without a mediator, the judge will ultimately settle those disputes for them – and the results may be less than favorable. A divorce mediator is a neutral, impartial guide who will help the couple come up with potential solutions, keep on track, and clarify the various areas of disagreement. In many cases, a mediator is able to assist both parties to see the other person’s point of view and arrive at a mutually beneficial agreement. A mental health professional, business professional, attorney, and others can potentially become certified by the Florida Supreme Court as a divorce mediator. The mediator must meet the necessary requirements as well as the ethical standards for mediators, adopted by the Florida Supreme Court. A mediator’s job is not to provide legal advice, business advice, counseling, or therapy, but rather to help the parties resolve disagreements regarding the divorce in the best possible manner.
What Happens in Mediation
Whether the mediation is court-ordered or chosen by the couple, the mediator will begin the session by explaining the process of mediation, as well as his or her own role in the process. The mediator will explain that the decisions made during mediation are not made by the mediator, rather they are made by the couple themselves, after being presented with options from the mediator. Both parties will be given the opportunity to describe their concerns regarding the divorce issues. Generally, the mediator will meet with both parties, although in some cases the mediator may meet with each party privately. If private sessions are held, the mediator is barred from repeating what one spouse discussed unless given permission. It’s important to remember that the mediator has no interest in one party “winning” over the other.
How Mediation May Progress
The mediation can end in one of three ways. The spouses may reach an agreement either for all issues or at least some issues and an agreement will be signed after being looked at by both attorneys. If the mediator determines no progress is being made, an impasse will be declared. If an impasse is declared by the mediator, both parties will be bound by the judge’s decision regarding their divorce issues. The mediator may also adjourn for the day in order to allow tempers to cool, then resume on another day to discuss a resolution.
There are many benefits associated with divorce mediation, including the following:
- Both spouses feel as though their future is not being decided by someone else, and that they are able to make their own decisions with some help from the mediator. A divorce is stressful enough, and no one wants to feel as though they have no say in the many issues associated with a divorce. Mediation can offer self-determination to both spouses. Studies have shown when people agree to specific terms voluntarily, they are much more likely to comply with the terms and much less likely to disagree over perceived violations or misinterpretations of the agreement.
- Confidentiality is key in the mediation process. While a trial or hearing is held in a public courtroom with all the couple’s private issues being aired to all, mediation sessions are private and, in most cases, confidential. If the mediation sessions are ordered by the court, Florida’s Mediation Confidentiality and Privilege Act applies. In a non-court-ordered mediation, the parties may agree the Act will apply. The exceptions to mediation confidentiality are when child abuse or elder abuse is admitted during the sessions, or when one party admits to committing a crime or planning to commit a crime. The signed mediated settlement agreement is not confidential unless both parties and the law agree and allow it to be confidential. Confidentiality in the mediation process encourages spouses to reach an agreement as well as allowing them to speak openly without fear that what they say will be used against them in court.
- Communication obstacles can be overcome when a mediator is involved in the divorce process. Mediators are trained to help both spouses communicate with one another. When a conversation on divorce issues appears to become stalled out, the mediator can jump-start the conversation by taking a new angle.
- Mediation agreements are enforceable. Once the agreement is put into writing, signed by both spouses, agreed to by the attorneys, and signed by the judge, it becomes a legally, binding agreement, enforceable by a Florida court.
- Flexible solutions are much more likely when a mediator is involved in the divorce process. Mediated solutions are generally more creative, with a goal of a “win-win,” rather than one person being the “winner.” Mediation is different from a litigated divorce in which a judge will make the final decision which could potentially be a decision neither person is happy with. The mediator will brainstorm with the couple during a mediation session in order to come up with a solution that makes sense. The mediator and the couples are not bound to follow prior case outcomes and can come to any agreement they are happy with.
- Mediation is very different from trial where evidence is presented by both parties and a judge or arbitrator decides the outcome of the dispute(s). A mediator assists both spouses in finding mutually acceptable solutions to divorce disputes. There is no “gambling” on the outcome when mediation is chosen, as there is when a couple goes before a judge—there is no uncertainty or the stress of wondering how a judge will divide the couple’s assets or time with their child.
- Both time and money can be saved when mediation is implemented by a divorcing couple. Mediation is almost always quicker than going through a formal trial process, therefore is likely to cost much less financially, as well. Litigation is costly, not to mention unpredictable. Most divorcing couples are unaware of just how costly those legal fees can be until they have already incurred them. Following the first mediation session, the couple is likely to have a fairly good estimate of how many hours it will take to resolve the issues through mediation, therefore how much it will cost. The goal of mediation is to end disputes and conflicts as quickly as possible, translating into monetary savings. When a couple litigates a divorce, they are at the mercy of court dockets and scheduling issues which can drag the divorce out for months, or even years. While litigation may sometimes be associated with higher payouts for one spouse, the cost of research, depositions, expert witnesses, and attorney fees will mount quickly for both
- Understanding the underlying causes of the couple’s disputes is much more likely during mediation. The couples interact with one another with the help of the mediator, who helps both parties understand why the other person wants a certain outcome.
- The mediation process is much more informal than a court setting. Most mediations take place in a conference room with both spouses and the mediator seated around a table to discuss the issues in a setting that is neither threatening nor intimidating. The rules of evidence are not required to be followed, and formal courtroom etiquette is not required.
- Mediation is non-adversarial. Litigation tends to be adversarial by its very nature. Both sides “come out swinging,” and remain in attack and defend mode throughout the process. Mediation is more of a peaceful, conciliatory process that allows both parties to explain their perspectives, generating solutions that ultimately benefit all those involved.
- Mediation is a private process that allows spouses to vent anger or deal with hostilities privately. Litigation, on the other hand, takes place in a public courtroom, generating a flurry of (also) public documents accessible to anyone.
- Mediation can definitely be in the children’s best interests. Litigation that drags on for months or years can create deep scars in the children who are involved. Parents who make a conscious choice to handle their divorce in a non-litigious, non-contentious manner are giving their children an immense gift, even if they do not fully understand just how special that gift really is. Hurtful comments voiced in the presence of the children cannot be taken back. Mediation, on the other hand, allows parents and children to largely avoid the emotional damage associated with litigation.
- Divorce mediation results in much greater satisfaction regarding the overall outcome than litigation. In most litigated divorce cases, neither spouse gets exactly what they want, and one party is more likely to “win.” If the final award is unexpected, it can be traumatic for the person who feels as though he or she was “shorted.” Mediation avoids the powerless feelings which can accompany a third-party judgment.
- When couples engage in mediation, they are certain no bias was involved in the final decisions. In many cases one party may feel as though the judge treated them unfairly or had a bias against them, resulting in them receiving less of the marital assets or less time with the children. There are no victims in a mediated divorce settlement.
The High Success Rate of Mediation
Although many certified Florida mediators are attorneys, no legal advice is given during mediation, and no legal conclusions regarding the merits of either spouse’s position are allowed. Mediation has gained popularity as a way of settling disputes between divorcing couples. The reasoning behind the requirement that divorces be mediated prior to being placed on a trial calendar is that mediation is a more efficient option to litigation. The success rates of mediation are extremely high, as the neutrality of the mediation atmosphere tends to eliminate the desire to proceed with hostile litigation.
Myths Regarding Mediation
While many couples feel mediation won’t help them because there are too many hard feelings between them, in fact, certified mediators are well-trained in assisting couples to resolve those feelings and cooperate with one another. Obviously, there will be some couples who have so much anger and hostility between them there is no other solution than to go before a judge. Even a complex divorce can be handled through mediation, no matter how complicated the financial aspects or the complexity of the divorce issues.
Other couples feel mediation will leave them settling for less than they deserve. The fact that Florida is an equitable distribution state will prevent this from happening, regardless of whether the case is mediated or litigated. The attorneys for each spouse can assist in preparing and presenting the information necessary to substantiate each spouse’s claims. Many people also feel that attorneys want nothing more than to litigate their divorce case. In fact, Ayo and Iken attorneys are fully aware of the fact that traditional divorce litigation may not be the best option for every couple, most particularly those who desire to resolve their differences peacefully.
Lawyers are generally busy professionals who have no interest in litigating a case simply to rack up billable hours, therefore are generally proponents of mediation. In short, most attorneys truly want what is best for their clients. Finally, many believe child custody issues cannot be addressed during mediation. Many studies have shown mediation can allow couples to put together a Parenting Plan everyone is happy with. Child custody issues can absolutely be worked out during mediation, and often are.
Deciding to Use Divorce Mediation
Those couples who feel mediation might be a much better solution to their divorce disputes than litigation should discuss the benefits of mediation versus litigation with their respective attorneys. If the couple decides mediation is the best way to go, their attorney can assist in locating a certified Florida mediator. Those couples who are willing to sit face-to-face with their spouse in the interests of creating their own settlement agreement (within the limits of the law) will benefit greatly from mediation. Couples who truly want an amicable divorce but need help understanding the Florida laws which govern the distribution of marital assets, custody or visitation are happy to discover a mediator can quickly identify the marital issues, and help negotiate a settlement everyone is happy with.
Author’s note from Attorney Howard Iken: Mediation is a process used in Florida court cases to reach a settlement agreement. A neutral mediator helps both parties discuss and resolve their disputes. Mediation is often used in divorces to avoid court decisions. It offers benefits such as self-determination, confidentiality, improved communication, enforceable agreements, flexibility, time and cost savings, and higher satisfaction. Mediation is successful in most cases. Couples considering mediation should consult their attorneys and find certified Florida mediators.