Divorce Without a Court Fight
One first step if you and the other party in the case want to go to mediation instead of hiring attorneys and pursuing contested litigation in court, is to agree on a mediator to use. You can both check out different mediator's websites, and talk to mediators on the telephone to get a sense of what they're like. One thing to think about, is if your first call to a mediator who is also an attorney is for a legal consultation regarding you case, that mediator isn't going to be able to mediate the case for you and the other party. The mediator has to be neutral, and can't mediate the case if they provided services for you regarding the matter as an attorney. That may seem confusing, or a bit of fine line, but it just a matter of keeping all of the lines clear. If you're looking to possibly hire an attorney/mediator to mediate for you, be sure to call them asking about mediation services.
When I'm mediating a case I'm not permitted to give you legal advice, but a mediator can guide you through the issues that need to be resolved and give you general information about what the family law statutes and rules say. For example, a mediator can identify issues to address in a divorce case -- time-sharing and parental responsibility (custody), property division, alimony, child support, and can offer options to resolve the issues, or help you by computing child support based on Florida's guidelines. Sometimes spouses, parents come to mediation already having made decisions about some issues, and know what issues they need the mediator to help them with.
As another example of the difference between mediation and legal advice, a mediator can explain that Florida Statutes require the parties to agree or go to court for approval before a parent relocates 50 miles or more from the current residence, and show you the statute listing the factors the court should consider in deciding whether to approve a relocation, but couldn't analyze the factors in your case and give you advice about whether or not the law in Florida supports relocation in the particular circumstances of your case.
There is a lot that has been written about different approaches to mediation, and sometimes mediation works because both sides are simply ready to sit down and try to work out an agreement. Some of the other factors that make mediation work are:
- the mediator helping to create a structured environment to try to work out agreement regarding issues - for example, managing the parties taking turns, limiting derogatory comments, separating the parties and holding separate "caucuses" by going back and forth between the parties; basically keeping things structured for long enough that the parties can work out a deal without fighting and then go their separate ways;
- the mediator sometime being able to suggest options the parties haven't thought of which opens up some room for reaching an agreement;
- sometimes one party or the other deciding to "give in" on perhaps a small issue, which sometimes leads to the other party taking a little bit of a "softer" approach as well. It actually is possible sometimes for each spouse to hear enough positive from the other side, that they walk away feeling a little better about each other.
Although mediation is possible in some cases where there has been domestic violence, it is not appropriate if it's not safe. Pre-Suit Mediation is most likely not going to be good for you if you need the process of "discovery" in a court case to get information about your spouses finances, of if you need an attorney to protect you and advocate for you. Discovery is a legal process which requires the other side to provide documents to you, answer written questions (called Interrogatories), answer questions in depositions, etc.
If there are complex financial or legal issues in your case, you and the other party may want attorneys or financial experts to help work out the details of the case and an adequate settlement agreement. That might be the type of case where you and the other party go to mediation yourselves, but consult with an attorney outside of the mediation, or bring an attorney with you to mediation.
I mediate divorce and other family law cases, am a collaborative family law attorney, 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.