The Mediation Process
Preparing for Mediation
You actually have some options here. Some people might prefer to not put extensive time before mediation into thinking through the issues they want resolved and what they want, and look instead for a mediator they trust to guide them through the issues. If your going through a divorce or other family law case, it’s probably almost impossible though to not think about the issues. Some people seek out legal advice before mediation to know what they’re rights are (or talk with accountants or financial advisers). Some people don’t want to deal with attorneys at all (maybe not even a mediator who’s also an attorney), or to address the case from an attorney’s or a “legal” frame of reference, and develop instead their own sense of what’s fair and what they want. A mediator can identify issues to resolve, and give you options and general information about Florida law – you can look here -- Pro-Se Mediation, for a discussion about the legal information a mediator can provide. You can get a credit report for yourself, to see what debts are out there. If the amount in different accounts, e.g. retirement accounts, or different bank accounts is going to be an issue, you can look at that before mediation – or use mediation as a place for everyone to develop a plan about how to proceed, what information is still needed, etc.
The Mediation Process
We’ll start the mediation either all together, or in separate meetings between me and each party called “caucuses”, depending on what seems best for your situation, and we’ll begin with at least a brief overview of the mediation process -- what we’ll be doing etc. Then the mediation begins from there, addressing each issue we need to address to settle and resolve your case. If you want to get a good outline or overview for yourself of the issues to address in a divorce for example, you can look at the Florida form Marital Settlement Agreements and Parenting Plan (there is one Settlement Agreement for divorces with minor children and one for cases when there are no minor children -- you can find the forms at Florida Family Law Forms). You can mediate other types of cases as well, e.g. enforcement, modification, and paternity cases.
As with the start of the mediation, the entire session can be conducted with everyone in the room, or through caucuses – which basically means, you each sit in a separate room, apart from the other, and I shuttle back and forth between you. That structure is good if it’s the best way to avoid excessive arguments/conflicts, but sometimes the two of you being in the same room, talking issues through, can help you reach some kind of settlement.
The goal is to reach an agreement on every issue in the case, one at time, and to write up the agreements in a Settlement Agreement for the case, and Parenting Plan if there are children. If both parties are committed to the idea of resolving the case through mediation one way or another, and not going through litigation, the idea is to be efficient – mediation is billed by the hour, and to get agreements done – one issue at a time. Negotiating can be tough – it can be hard to decide what to settle on – you might think about whether the other party is asking for too much. If you push too far, with or without realizing it, you may see the other party has gone as far as they’ll go on an issue, but you may not be getting what you want or believe is fair, and might wonder if the other side would settle for something other than what they seem to be saying is their bottom line. Or, both sides could be closer to each other, and more agreeable on many of the issues. Emotions can become involved or take over, and one or both sides may stick to their positions because the issues are complicated, and doing anything else would feel like giving in.
There can be what’s called an Impasse in mediation, which mean the parties have done all they can do, there’s no agreement on a particular issue, or on any issue. Sometimes, each party has a fundamentally different view of what’s an acceptable outcome, and no compromise is possible. Those views can continue if the case is litigated, and if people never come to an agreement, the only outcome left is the expense of attorneys, discovery, hearings and a trial, if you hire attorneys to litigate, or going through the court process if you handle the case yourself. So the idea, for most issues, is to keep working, negotiating. If you reach an impasse in mediation and litigate, at some point you might be right back at the same point – the parties have differing positions on one or more issues; it’s not completely clear how the issue would turn out in court; and what do you do – do you settle even though there is uncertainty, or do you go to trial. One thing a good attorney can do for you in a litigated case, is perhaps help the other side come to a point where they see that your position is right, or help you see that your position is not supported by Florida law – but it can be expensive, and there are no guarantees.
For many issues, there’s often a range outcomes that are possible if the case went to trial, and room for negotiation. When there’s uncertainty about how the case would turn out in court, if the issue is worked at enough in negotiations – through attorneys if the parties have retained counsel, or in mediation between the parties, many times the parties little by little each change their minds a little, or revise their positions until people meet in the middle. This doesn’t mean compromising yourself, or giving in on some basic and important issue. For example, if it’s clear to you that the other parent’s visitation with the children needs to be supervised for the safety of your children, then that’s not an issue where there is some uncertainty regarding how the issue should be resolved.
I am a Florida Supreme Court Certified Family Mediator, Florida Qualified Parenting Coordinator, and Florida Licensed Marriage & Family Therapist. Call me at (954) 636-7498, or use the contact form on the website, and we can discuss mediation for your case.