Divorce Attorney Scott J. Stadler

    • 26 OCT 14
    Mediation – An Alternative Approach

    Mediation – An Alternative Approach

    Many times couples who are divorcing are looking for a method of resolving their disputes that offers an alternative to having a court decide such important matters as time-sharing, child support and alimony.  Even if there are major points of contention, these often can be resolved through mediation.

    In Florida, most courts require that the parties go to mediation before a hearing date is set.  If matters can be resolved through mediation, then there is no need for a trial.  The resulting agreement is signed, approved by a judge and incorporated into a final decree of dissolution.  It certainly is a less painful approach to divorce than a full blown trial, and often results in a win-win for all involved – the spouses, the children, and the court system.

    What Is It?

    Mediation is a process whereby the parties, guided by a neutral third party, work toward resolution of their conflicts.  Increasingly, mediation is used in a divorce process to come to solutions to all the matters involved in unwinding a marriage.  This method can resolve such issues as who keeps the house, division of marital assets, time-sharing of the children, living arrangements, schools and religious education of the children.  Matters of child support and alimony, if appropriate for the situation, are set by statutory guidelines, however, the mediator can help with the calculations for those amounts.

    It is important to note that the mediator is not a judge who decides issues for you, but rather a facilitator to help the two of you come to resolution of the issues.  They can help with communication between the parties, suggest compromises and offer solutions, but the decisions remain with you and your spouse.

    Once agreement has been reached, the mediator will reduce the agreement to writing, called a Marital Settlement Agreement, which will be signed by both parties.  Then the Marital Settlement Agreement is presented to the judge.  The mediated agreement usually becomes part of the final Decree of Dissolution.

    One caveat here – if the agreement appears completely one-sided, or requires that one party gives up significant rights they would have otherwise been entitled to, the judge may question the terms of the agreement.  If there are questions of duress (emotional blackmail) and it seems the agreement is not really the “meeting of the minds” that it should be, the judge can choose not to acknowledge the agreement, or send the parties back for additional mediation.

    Why It Works

    There are numerous benefits to working your issues out through mediation.

    • Mediation is usually much less costly than the traditional route
    • You and your spouse are in control of the outcome – not the court.  You resolve your issues based on your ideas of what is fair.
    • You can still have a lawyer to protect yourself
    • Mediation can resolve all the issues of your divorce
    • Sense of empowerment – you have a hand in the outcome

    The biggest reason that mediation works is that it is the product of the opinions of both parties.  Each one feels they are invested in the process and the resulting agreement.  Both feel that their positions have been heard, acknowledged and, to some extent, incorporated into the Marital Settlement Agreement.        

    How It Works Best

    As with any negotiation, it works best when both parties are earnestly trying in good faith to reach a solution or compromise.  If one party or the other is delaying, stalling or otherwise obstructing the process, it will not be as successful as those who are seriously attempting to reach settlement.

    Preparation is a key component to successful mediation.  If you have prepared a list of marital assets and relative net worth, this streamlines the process.  If you have an idea of how the time-sharing would best work, bring the proposal to the mediation.  Many times resolution can be achieved in a single session, or a few sessions.

    Coming to the mediation session with an open mind can also benefit the process.  Even if you or your spouse comes into the mediation with feet set in stone on certain issues, it may surprise you how well matters may resolve.  One task of the mediator is to educate the parties on what the law will and won’t allow, such as the issue of child support.  Once this education takes place, it can change minds and ease resolution of issues.

    Will It Work For You?

    Even if you are at the point in your divorce where you can’t be in the same room as your spouse without open warfare breaking out, mediation can still work.  In cases such as these, the parties remain in separate rooms with the mediator going back and forth to the parties with positions and suggestions.  Even very contentious divorces have been resolved successfully through mediation.  You might be surprised at how powerful the process of mediation can be in helping to resolve disputes.

    Divorcing parties who really want to keep the best interest of the family at the forefront usually are successful in their attempts at mediation.  In Florida a very high percentage of couples use mediation to resolve some or all of their divorce matters – proof that the process really does work.

    There are even post-divorce mediation services, which help the now-divorced couples with the fine details of their new life.  Those who have had successful divorce mediation often seek help with the new issues.

    Where Do We Find a Mediator?

    There are a number of mediation services offered, but it isn’t always easy to know how effective they may or may not be in helping resolve the problems.  Perhaps the best choice would be to find a Florida Supreme Court certified family law mediator.  These mediators have been extensively trained and recognized by the Supreme Court.  This way you can be sure that the person you are working with really knows what they are doing and can effectively help you resolve your divorce issues.  Florida maintains a website with such information here.

    Often these certified family law mediators are also family law attorneys who are very experienced in the issues and possible resolutions of divorce conflicts.  They know the intricacies of family law, and how to approach matters to get the best result possible.  Every circumstance is different, but it may serve you well to investigate the possibility of mediation for your divorce.