At some point in a divorce proceeding, parties may seek, or the court may order, mediation of the case. Mediation is a process for resolving disputes that enables the parties, with the help of a mediator, to form an agreement on contended issues.
For example, a Florida Supreme Court certified mediator conducts the mediation according to rules and statutes requiring mediators to:
- Remain neutral, not biased toward either party;
- Not force either party into an agreement and;
- Always cooperate for the mutual good of the parties.
Mediation starts lines of communication and authorizes parties to explore all settlement options to resolve disputes. Everything said during mediation remains confidential and (except as provided by law) may not be repeated to anyone other than the other party or the party’s attorney. Mediation provides the parties more control over the outcome of their case, commonly allows the case to be resolved sooner, and can save on the overall expense involved in the case.
In terms of the cost of mediation, it is based on local state statutes. For instance, Florida Statutes provided a reduced rate for parties with a combined annual income under $100,000. The current rate is $120.00 per party for each session for parties whose combined income ranges between $50,000 and $100,000 and $60.00 per party for each session for parties whose combined income is less than $50,000.
You must file a Financial Affidavit with your case to establish the fees. Before the mediation, all fees must be paid to the Clerk of Court in the county of filing. These numbers are subject to change, and it is important to check with your local state regulations for clarification. Each state operates separately, and it is essential to research the local rules.
What Issues Do Parties Try to Resolve In Family Mediation?
During mediation, parties collaborate on an agreement on issues including:
- Division of Assets and Debts: Determining a fair and equitable distribution of the assets;
- Alimony: The payment amount for permanent alimony, lump sum alimony, or rehabilitative alimony for a specified time;
- Other Entitlements: How can retirement earnings be considered or divided;
- Shared Parenting Plan: Create a plan for children born or adopted during the marriage and what the visitation schedule will be like.
- Child Support: Who will be the custodial and noncustodial parent, which parent will be financially responsible for the child support payments and;
- Health insurance, educational costs, and other future child expenses.
Furthermore, if the parties come to an agreement on all issues and file a Marital Settlement Agreement before the mediation, they may seek a waiver of mediation and refund of fees through the Clerk of Court. If the court orders you to attend mediation, you will receive an Order of Referral to Family Court Mediation in the mail. In addition to the court order, there will be a list of family mediators under the court contract who are trained in family mediation and certified by the local state court.
You must select a mediator from that list, and contact them to schedule mediation. Moreover, you should contact the mediator right away to schedule the mediation. Per the court order, parties have a certain number of days to finalize the mediation. When you call to schedule the mediation, it is crucial to inform the mediator of any pending Domestic Violence Injunctions involving you or the other party.
If the mediation session results in a mediated settlement agreement, it will be filed with your case, and copies will be sent to each party. Afterward, you will need to file a request for a hearing to receive a hearing date or further instructions to proceed with your case.
What is the Role of Family Mediators?
Family mediators are individuals who resolve disagreements about marriage, separation, divorce, parenting schedules, child support, alimony, property division, elder care, the family’s budget, distribution of inherited property, family business succession, and other family matters. In a confidential setting, the mediator guides each party to communicate what is significant to them and to listen to what is important to the other party.
With the support from the mediator, the parties can:
- Identify the issues that need to be resolved;
- Prioritize the issues and focus on them one at a time;
- Discuss possible solutions;
- Agree with parenting plans and or financial or other issues and;
- Prepare a draft of their emerging agreement; review, revise, and prepare the agreement for signing.
While some mediators may have a legal background and others have backgrounds in other professional areas, such as mental health, mediators have a unique role. This role means they are not representing or advocating for either party. Mediators can provide you with information about state laws and local court procedures and inform you about other resources available, but they do not provide legal advice.
This means that they do not interpret statutes or advise about or recommend any specific legal action that would benefit either party over the other. The mediator must assess whether mediation can be safe and effective after understanding the nature, frequency, and intensity of prior incidents of such abuse. If there has been a safety review and it can be assured for each party, then mediation may proceed successfully.
Regarding the timeline and when to start the mediation process, it is recommended as soon as the parties agree to try to resolve their differences outside of court. It is better to try mediation before the litigation process creates too much mistrust between the parties and before the lawyers initiate expensive discovery processes. It is important to note that early mediation can save the parties thousands of dollars and minimize long-term distress.
What are the Financial Advantages of Mediation Over Litigation?
The most common alternative to mediation is to collaborate with two separate lawyers to handle negotiations. This is much more expensive due to the following reasons:
- The hourly fees of mediators usually are lower than those of lawyers;
- Lawyers generally charge clients for more hours of work to decide something because they get paid for the time they speak with you and for the time they spend communicating with the other party’s lawyer and;
- For a divorce professional’s time to accomplish two hours’ worth of work, two family members can either pay two lawyers (a total of four hours of work) or, together, they can pay just one mediator (for only two hours of work);
Litigious approaches to divorce involve inefficient use of time, including costly procedural actions (e.g., filing declarations and motions, depositions, discovery, countless back-and-forth communications between the lawyers, etc.), whereas mediation is a straightforward approach. The agreement that arises from mediation can easily be incorporated into a court order.
How Successful are Mediations?
According to the Academy of Professional Family Mediators, there is no method of conflict resolution that is considered 100% successful; the success rates for mediation are far better than those for litigation. This is partly because both parties “win” in mediation, but in litigation, only one party “wins.”
Success in mediation does obligate that both parties negotiate in good faith and wish to resolve matters. For instance, if someone would rather spend $50,000 punishing an ex-spouse than keep most of that money in the family for the children’s benefit, then mediation may not succeed.
Furthermore, if the parties have unrealistic expectations and each is convinced that the judge will rule everything as that party sees it, they may both need to evaluate their experiences before they are ready to negotiate. Such exposure often teaches people that family court has no guaranteed fairness or justice.
When Do I Need to Contact a Lawyer?
If you want to participate in family mediation or have been ordered to do so, it may be useful to seek out a local family law attorney to assist you in the process.