What is Mediation?
Divorce, by its nature, carries a lot of conflict between spouses. Sometimes these conflicts can be resolved by the parties. Sometimes the conflicts are so severe that they end up being resolved by a Judge. In between, there are issues that can and do get resolved through a process called “Mediation”.
To those unfamiliar, mediation is a formal negotiation session that is hosted by a third party. Unlike Arbitration or a Court hearing, the final decision at mediation is made by the parties. If no agreement is reached, the mediation is terminated as an “impasse”.
If the parties agree, then a “mediated settlement agreement” is drafted and filed with the Court. This mediated agreement is ultimately entered as a Court Order, and is just as enforceable as an Order that was entered after a contested hearing.
This is an important thing for the parties to understand, because it allows them to draft their own Court Orders, and eliminate the risk and uncertainty of a contested hearing.
How does Mediation Work?
All contested divorce cases start out with at least one disagreement. One spouse will want more alimony than the other is willing to pay, or the parties won’t be able to agree on a time-sharing or custody schedule. Ultimately, one of the parties will want the Court to intervene to give them the relief that the need, or to stop the other person from doing something they disagree with. In order to have the Court make this decision for you, your attorney must file something called a “Motion” with the Clerk of the Court and request a time before the Judge where you can present your argument as to why the Judge should Order exactly what you want.
For almost every Divorce or Custody dispute in Sarasota and Bradenton, the Court will order the parties to attend mediation before they are allowed to schedule their hearings. This can be frustrating for time-sensitive issues, but as we’ll discuss here, usually has a positive outcome.
Why use Mediation?
For some cases, the parties disagree on such a fundamental level that they may never be able to come to an agreement. While unfortunate, there is an entire Court system in place to allow an ultimate resolution to the parties’ problems.
Fortunately, for most divorces, there are at least portions of the case which have some hope of compromise and ultimate settlement. This is where mediation has an advantage.
With the help of a qualified mediator, clients in Sarasota divorce cases have the opportunity to maintain control over the outcome of their case, only allowing the entry of an Order if both parties agree.
The parties control the outcome of mediation. that the parties have control over the outcome, and both parties have to agree to the final resolution. Mediation can be especially helpful in Sarasota divorces that involve minor children.
The Florida Court system strongly favors resolutions, either partial or complete to be made between the parties without the need of judicial intervention. As seen here: ADR, or “alternative dispute resolution” is a preferred method of solving conflict between parties in any lawsuit, including a divorce or custody dispute.
When should I Explore Mediation?
Unless there is a time-sensitive need for relief from the Court (one party is behaving in a way that harms the children, or a spouse is emptying bank accounts), you’ll generally want to wait until you’ve made some progress with discovery (see our article on discovery for a detailed explanation of the discovery process) before you set your appointment with a mediator.
What are Some Mediation Strategies I Can Use?
Every case is different, and sometimes mediation can provide a complete or “global” settlement. Other times the parties are lucky if they can reach even a temporary agreement. If an agreement can’t be reached, it’s good policy to use the time spent at mediation to build any positive momentum towards settlement.
Sometimes it becomes apparent that mediation isn’t going to work early on. If that’s the case, it’s wise to avoid “tipping your hand’ or letting the other party know your mediation strategies or the details of your case by your offers or discussions. A common mistake is to let too much information out at mediation, and to educate the other side as to your long term strategy.
Mediation is confidential, as discussed in this article, but what you learn at mediation can be extremely valuable in tailoring your strategy for the remainder of the case. When in doubt, turn it into a learning opportunity and move along.
Confidentiality in Mediation
This is important! As we touched on above, mediation is confidential. Exceptions exist, as with anything, but these relate to things like crimes against the children or the elderly. Confidentiality in mediation allows you to be sure that if you reveal sensitive information, the other party will be sending a discovery request over shortly after mediation directed at that information. If the information is gathered outside the mediation setting, it’s fair game, so it’s usually wise to keep some of your more important strategic considerations close until it appears a settlement is imminent.
What happens if we can’t reach an agreement?
Sometimes the parties’ goals are so far apart that they can’t reach even a partial agreement. When that happens, it’s called an “impasse”. The mediator files a report to the Court that says everyone attended mediation, but were unable to reach an agreement. This doesn’t reflect poorly on either party, nor does it mean that negotiations have to stop. As often as not in my practice, I’ve settled cases a few weeks after mediation once the parties have had a chance to evaluate their positions and consult with their attorneys. Just because the agreement doesn’t happen on the day of mediation doesn’t mean mediation won’t get you closer to an agreement.
Do I need a Mediation Attorney?
Assuming that no agreement is reached, the case starts heading for trial. A pillar of our practice is that trial is nothing to be afraid of, but something to prepare for. As Sarasota mediation attorneys, when we take the time to prepare and educate our clients, trial is approached with a calm confidence and sense of readiness.