Using Mediation at the Time of Divorce
Mediation has been defined as a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. To unpack that mouthful, mediation is simply a way for the couple to come together, and with the assistance of a third party, voluntarily resolve any terms that need to be discussed. This process can be as informal as sitting at a table with your attorney and the other spouse with his/her attorney and discussing issues such as a parenting plan, equitable distribution of property, alimony, child support, etc. Oftentimes, this can be done voluntarily before it is court-ordered and actually may save you some costs, depending on the issues in the case. At the end of the day, the mediation resolutions are made by self-determination and no decision is forced on a party. In Florida, the divorce and family courts require the parties to attend mediation prior to a final trial on the issues.
This Sounds Like Arbitration, What’s the Difference?
As mentioned above, mediation is merely just a method of conflict resolution with the assistance of a neutral third party. Usually, this method is conducted in a non-adversarial manner allowing the parties to resolve any conflicts before or after court involvement. On the other hand, Arbitration is an adversarial process (though much less formal than a trial). In this method of resolution, a decision may be binding if the parties agree that it will be such.
There are certainly advantages to arbitration as an alternative method of dispute resolution such as speed, simplification, the potential for selection of a decision-maker with specific expertise, the finality of the proceedings, reduced cost, and privacy. However, two major drawbacks to arbitration are that parties are limited in any right to an appeal, and arbitrators cannot deal with cases that involve minor children.
So Why Mediate over Other Dispute Resolution Methods?
Mediation is a great way to come together for each party to become aware of the other’s needs, capabilities, and capacities. This greatly increases the likelihood of a compromise between the parties. Furthermore, this forum will help foster a relationship in which the parties can resolve future disputes without the need for future judicial intervention all while fashioning a solution that fits their specific needs. This is important because divorced parents are mandated to join in the decision-making as to the decisions affecting their children’s welfare for the best interests of the children. Under this shared parental responsibility, communication between the divorced parties is required. Mediation assists parents in the initial phases of the divorce and can lay the foundation for future experiences of working together as divorced parents. Finally, many divorce attorneys over the years build relationships with mediators. This trust is crucial because it lets you as a client know that you are getting a quality mediator who is well equipped to handle your needs. There also tends to be higher client satisfaction concerning the children and other issues through mediation as adversarial methods have lower compliance and less perceived fairness in the outcome.
So What is the Mediator’s Role?
The mediator’s function is to serve as a catalyst to generate interaction between the parties. The mediator’s main goal will be to foster communication. They will also educate each party regarding the desires and needs of the other. They translate proposals from one party to another using neutral language. This allows the party’s message to convey accurately their objective. Finally, in the instance that things do not go well, they are there to act as the bearer of bad news. Mediation is not perfect and does not guarantee a resolution. When this happens, it is beneficial to have someone to cushion any negative reactions.
With the help of your attorney and a trusted mediator, you may find that you can resolve many issues in a more amicable and cheaper manner. Keep in mind, that if your issues are not resolved, then what was discussed at mediation is confidential and cannot be discussed with others or the Court.