Mediation is a compulsory part of family law cases in Florida. Once a petition for dissolution, paternity, or post judgment action for modification has been filed and answered, and once the parties have completed mandatory disclosure, the Court will refer you to mandatory participation in mediation. How this process will pay off in terms of your case objectives depends entirely upon the participants.
To begin with, it should be clear that mediation is not about a third person solving your problems. It is about putting the parties, themselves, in a neutral private setting that will remain confidential and encourage them to “talk it out.” The parties, themselves, control the discussion. No one tells them what to decide, nor does the mediator advise as to the law beyond the most generic of terms (i.e. “next let us discuss a parenting plan, and here is an example of the types of issues you should consider”).
While you can have an attorney with you to advise as to your specific legal rights and the benefits of negotiation/risks of litigation, you don’t have to participate with a lawyer if that is your preference (though bear in mind if you have already hired one for your case they will most likely require that they be there). You will have the option of a period of review by an attorney of any settlement that results from mediation, so the safety of that opportunity is there if you don’t have counsel prior to the negotiation.
Mediation is a great way to advance your case by identifying those objectives that you and your opposing party have in common so that you can at least come to some partial agreement and thereby avoid wasting time and money pursuing litigation of issues you both happen to agree upon.
Moreover, mediation keeps the results of your case firmly in the control of the parties, themselves. If you choose not to settle certain points, then you are entrusting responsibility of a solution to a third party stranger – the judge – who will be limited not just by the rules of evidence and procedure in what he or she can hear about your situation, but will also be filtered through the persona and presentation of either yourself or counsel. In other words, the judge will never have benefit of all the nuance and detail of first hand experience in your life that you and the other party will.
A judge will not know, for example, if you are willing to negotiate away your interest in the house because you’re priority is keeping your 401K plans, even if it means a slight loss to you financially. A judge will not know that you and your co-parent have an unconventional parenting schedule that may not appear easy on paper but that works best for you because of odd job scheduling, availability of sitters, or other priorities. A judge will be bound to the predictable outcomes of the statutes – generally unquestioned 50% divide of assets and liabilities, shared parental responsibility, and other “default” settings of the law that will confine his or her solutions to the issues of your case.
Mediation will keep the parties more civil in their dealings with each other- something that is of critical importance when children are involved. Litigation can be slow, painful, and the perception of argument by lawyers attempting to advocate their case can breed resentments between co-parents. It is far better to avoid this if possible since even though you might find yourselves no longer a couple you will always remain family through the raising of your child.
Mediation is also a great way to keep down costs. If the parties are able to pair down or completely settle their case during this process, then they will avoid seeing a chunk of their assets – be it from income or shared marital resources – go to their lawyers for the purpose of litigation, rather than to themselves or to their children.
In short, Mediation CAN mean the difference between a personalized, clean, and relatively inexpensive process, and an expensive case that can linger on for months to years due to docket availability and motions pleadings. All of these benefits are exactly why the process is compulsory.
And bear in mind – even the most hopeless of situations are likely to benefit from mediation. Statistics have shown that of all the cases that are filed in family law, 95% of them will settle before going to trial.
Mediation is a proven asset to the resolution of family law cases. Rather than view it as yet another procedural hurdle to be cleared, the best approach is to walk into negotiations with a sense of good faith, fair play, and an open mind. You might be surprised how civilly it can all turn out.