Divorce is an almost universally-feared legal process. Those Floridians who have not experienced the process think that it is a never-ending argument with their estranged spouse. Couples with children often try to use the children as bargaining chips to force the other spouse into conceding important issues concerning asset division or perhaps visitation. There was a time when these fears were not outlandish; fortunately, the members of the Florida bar who concentrate on handling divorce cases have devised a process that reduces much of the anticipated stress; the process is called “mediation,” and as the name implies, its goal is to bring both parties to the middle and thereby resolve most, if not all, of their disputes.
How does mediation begin?
The parties must first agree to engage in mediation. Most judges now require all divorcing couples to engage in mediation for a defined period. In either case, the parties must choose a mediator. This step is accomplished usually by talking to friends who have participated in mediation or seek the advice of their counsel. Once a mediator is selected, the mediator sets a series of meetings to explore the couple’s differences. These meeting are usually attended by both parties and their attorneys.
What happens in a mediation session?
Both spouses must understand that no one “wins” in a mediation. The mediator’s job is to help both spouses to understand the other party’s position and help them find an acceptable compromise. The mediator cannot make any decisions on the issues that are disputed. Thus, in a mediation session, the mediator will speak directly with both parties and encourage them to express their concerns and wishes. The mediator may also meet separately with each couple to discuss their concerns and to explore potential solutions. No agreement can emerge from a mediation session unless it is accepted by both parties. If all issues are resolved through mutual agreement, the mediator will draft a written agreement that will be signed by the parties and presented to the court as a draft divorce decree.
Most mediators keep careful notes of the matters discussed in a mediation session. If the parties are able to reach agreement on one or more of the issues that concern either of them, the mediator will draft an agreement setting forth the terms of this initial agreement.
All statements made in the mediation sessions or separately to the mediator are confidential and cannot be offered as evidence if the matter goes to trial. The mediator cannot be called as a witness by either party.
Anyone facing a divorce or already involved in one may wish to seek the advice of a competent divorce attorney (if one has not already been retained) on the pros and cons of mediation. Most knowledgeable lawyers will encourage their clients to engage in mediation.