When you decide that a divorce is the best course of action for your family, you have several options. You may elect to forgo the hiring of attorneys and simply attend one or more sessions with a mediator to resolve the issues of your divorce. Generally, if you and your spouse arrive at an agreement of terms, the mediator will prepare a written agreement that you both will sign. The Agreement is then filed with the Court and ratified by the Judge. Like many couples, you may want the security of having an attorney represent you during your divorce. You will still have to attend mediation, you will just attend mediation with your attorney. In the traditional divorce process, prior to attending mediation, your attorney will gather discovery, prepare for settlement and prepare for trial concurrently. In mediation, hopefully you will resolve all issues and obtain a written agreement. That Agreement is filed with the Court and ratified by the Judge. Couples resolving their divorce through the trial process make decisions about their family, their assets, and liabilities and based upon how a Court would likely rule on any given issue. This leaves some, but not much room to be creative in resolving the issues of a divorce. Mediation is a great alternative to trial.
When do I attend mediation?
Generally, you should attend mediation after all discovery has been concluded. For example, you and your spouse are both required to gather and exchange a number of financial and other documents which will detail the marital estate to be divided and your financial condition. Generally, your mediation will occur three (3) to six (6) months after the case is filed. Mediation can be delayed longer if there is an extensive financial estate or if there are issues regarding the children or parenting that need to be dealt with on an immediate basis. For example, if you and your spouse own several parcels of real property both in Florida and in other states or if you own a family business that needs to be valued, or if you or your spouse has a substance abuse or mental health issues that require special protections for the children, your mediation could be delayed while awaiting appraisals or while you or your spouse attends substance abuse treatment or parenting courses. This is to your benefit. In mediation, you will be making decisions about your divorce and life after the divorce is concluded. It is always best to make these decisions fully informed with correct information.
If you are attending mediation without hiring an attorney, it is likely that you will attend several sessions. Your first session will be to discuss generally the issues you need to resolve, the marital assets and liabilities, and to determine what documents need to be exchanged. Thereafter, you will attend as many sessions as is required to resolve all issues in your matter. Attending mediation without the benefit of an attorney is risky. Your mediator is not allowed to inform you whether you may be negotiating for something not provided for under Florida law, so you are making decisions based on what you unknowingly agree on, which might be vastly different from what you are entitled to. For example, if your spouse has repeatedly told you that he or she will not give you any retirement that he or she has saved during the marriage and you agree not to take any of the retirement despite the fact that you have accumulated none during the marriage and sacrificed your career to stay home and raise children, you are unknowingly harming yourself. You will be unable to make up those retirement monies and put yourself at risk for living in poverty during your retirement. Further, you are entitled by law to one-half of the retirement assets accumulated during the marriage.
What happens the day of mediation?
You and your attorney will show up the day of mediation prepared to negotiate the settlement of all of your divorce issues. You will have met with or had a telephone conference with your attorney to discuss what needs to be resolved, what the law is, your wish list and what to expect. First and foremost, expect mediation to be a long and stressful day. You will be sitting in an office or conference room with your attorney and your spouse will be sitting in a different office or conference room with his or her attorney, and the mediator will shuttle between the two rooms attempting to resolve the case. Mediation can also be attended online by Zoom or other similar platform.
The mediator will usually start by giving their opening statements. This is different from an opening statement your attorney would give during trial. An opening statement in mediation is when the mediator informs you of the confidentiality of the mediation process, what he or she can or cannot do, and to inform you of how the process works. Mediation is considered an informal process where you have the opportunity to speak to the mediator directly, hear different points of view and to talk to your attorney about the pros and cons of any decision you my make.
Generally, the mediator is certified by the Supreme Court of the State of Florida and has been trained to help you think outside the box and resolve your divorce issues. Your mediator is required to maintain confidentiality of what is said in mediation and can only tell the other party what you give the mediator permission to discuss. Each mediator operates differently. Some will ask you or your attorney many questions about the financial estate or the children. Others will just want to hear the basic facts from both parties before jumping in to the negotiations. Whatever the mediator’s style, your attorney will select a mediator that has a track record of resolving cases and whom her/she thinks will be best suited to help resolve your case. For example, if a majority of your issues are the parenting plan and timesharing schedule, your attorney will likely select a mediator that specializes in settling those issues. If your issues are largely financial, your attorney may select a CPA as mediator to help resolve your issues. You should be prepared to hear the mediator challenge your attorney regarding certain claims he or she is making. This is designed to help you understand whether your claim will be well received by the judge in the event that you cannot resolve your issues in mediation and must prepare for and attend trial, and help you make some changes or concessions to your wish list.
Once you have agreed to a resolution, either your attorney, your spouse’s attorney or the mediator will prepare a typewritten settlement agreement. You and your attorney and your spouse and his or her attorney will review the written agreement and make changes as needed until the agreement accurately reflects the terms of your settlement. If you have children, your settlement will also include a parenting plan and timesharing schedule. Both you and your spouse will execute the agreement. Once the agreement is signed, your divorce issues are resolved.
Most clients find mediation day to be stressful but cathartic. Once the agreement is signed, a weight is lifted from you and your spouse’s shoulders, and you can move on to the next chapter in your life. Sometimes, however, there is not enough time to resolve all issues in one day and you and your attorney will schedule a second day or half day of mediation to resolve the remaining issues. This is common and a smart way to make sure your matter resolves in mediation.
Can we mediate temporary issues?
Mediation is often used, and at times ordered by the Court, to resolve temporary issues. You may attend mediation to resolve temporary support issues or even just one particular issue such as preparing a parenting plan and timesharing schedule. Many courts require mediation before attending hearings on temporary issues. This helps ease the jammed court dockets and will allow you to resolve your issues quickly and less expensively. Often times, it could take months before you have a hearing on a temporary issue you have in your divorce. This is because there are so many divorce cases in Florida and each judge has only so many hours in a day to hear everything.
Can the mediator force me to do anything?
One huge misconception about mediation is that the mediator can act like a judge and order or tell you or your spouse how to resolve your matter or what actions to take or refrain from taking. Mediators are not judges. They cannot require you or your spouse to do anything. Their job in your matter is to help you make the best decisions about your case and to resolve it without the necessity of costly court intervention by negotiating an agreement that is fair to both you and your spouse. The hallmark of a good settlement is one in which neither spouse is happy, but one in which you both can live with.
What is the cost of mediation?
The cost of mediation is driven by many factors. If you and your spouse combined earn less than $100,000.00 per year, you qualify for court subsidized mediation at the courthouse. Court subsidized mediation is usually a fixed cost, not charged by the hour. Generally, if you and your spouse attend court subsidized mediation, you will be allocated 2-3 hours to obtain a settlement. You, your spouse, the mediator and any attorneys hired by you and your spouse, will all sit in the same room. The mediator or either side may request a caucus which is when one side leaves the room and allows the other side to remain and discuss issues with the mediator confidentially. If you cannot resolve your issues in the time allocated, you may elect to schedule another session. You and your spouse will be required to pay the mediation fee again, but that fee is extremely reasonable.
If you are attending private mediation, your mediator will charge anywhere from $250.00 per hour to $450.00 per hour. The day of mediation seems expensive, but that cost is pro-rated between you and your spouse for the day. Even if you have a ten-hour mediation with a mediator who charges $350.00 per hour and your mediation cost is $3,500.00, which is shared in some manner between you and your spouse, that cost is still much less expensive than preparing for litigation which will cost you at least $10,000.00 for just your attorney.