Frequently Asked Questions
What is the legal definition of mediation?
“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. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” (Florida Statutes Chapter 41.1011)
Do I have to mediate?
Yes! With the exception of “Simplified” dissolutions, all spouses must attend mediation in an attempt to resolve any outstanding legal issues by themselves (with the help of the mediator) before getting a judge or a court involved.
When do I mediate?
You have 3 options:
- Before you file a petition with the court for dissolution. There are no preliminary steps you need to take before you mediate. You can come in and negotiate some or all of the issues you face, and even after reaching an agreement, there is no requirement that you have to file a petition for dissolution. You can mediate at your own pace and on your own terms.
- After you file a petition with the court for dissolution. Your first step might be to file a petition for dissolution with the court. This will trigger a series of deadlines regarding when the other spouse has to file an answer, and when certain information has to be exchanged between the two of you. It also creates an official “date of filing” that does have legal significance.
- At any time before trial. If you are already in the middle of an expensive litigation that is not working out the way you wanted it to, you can always agree to try to mediate a settlement agreement. Quality varies widely among family mediators, and even if you have already attempted mediation, sometimes giving it one last shot before trial with someone else can make all the difference.
How do I select a mediator?
It is not as simple as asking a friend what worked for them. There is really no substitute for being knowledgeable about the process and taking an active role in selecting your mediator. Your mediator needs to have the following qualifications:
- Be a family lawyer licensed by the Florida Bar.Marriage and divorce are legal processes, and ultimately the settlement agreement you reach will be a legal contract between the spouses. Only lawyers will know how to draft such documents in a way that doesn’t create even more legal issues to litigate over in the future.
- Have a background in Psychology.Legal training is not enough to help spouses reach an agreement that works for them. Lawyers who only specialize in law are going to get stuck on issues that have emotional significance, as they will appear illogical and confusing. If the mediator cannot understand why something is important to you, they will not be able to help you obtain it.Concepts such as establishing proper boundaries, and the difference between assertive and aggressive behavior are rooted in psychology, and most lawyers receive no training or education on these important issues.
- Have a practice that focuses on mediation, not litigation.Family mediation is a distinct, specialized profession. To be an effective mediator, you have to mediate cases. Acting as a litigation attorney or as a judge will cause a lawyer to develop a skill set that is different and works against their development as good mediators.Litigators practice advocacy and have no experience of being neutral. Mediation is a non-adversarial process that involves collaboration without taking sides. Judges are trained to begin neutral, but then to form an opinion and argue that their perspective is the only “right” way to view the situation.Mediators must remain neutral throughout the process so that they can empower the parties to reach their agreement — one based on their values, and customized for their lives going forward.
How do I prepare for a mediation?
For mediation to work, its important to know not only what you want, but why you want it.
- Before the mediation, send me a paragraph with a description of your situation, including goals and concerns you have, and what you think any sticking points might be.
- Make a list of everything you want, and then rank them according to how important they are to you. Bring this with you to the mediation.
- Complete the financial affidavit (Form 12.902(b) or (c)) fully and honestly, as best you can. It can be modified later on, but it’s useful to generally depict your financial situation.
- Before the mediation begins, remember why you are there. When discussing and negotiating over details, it can be easy to lose sight of the bigger picture — a mediated agreement brings closure to the situation, avoids a costly and nasty conflict that could last for years, and it keeps the control of your lives in your own hands where it belongs. The damage that litigation causes to families is well-documented. This is your opportunity to enjoy the benefits of a different path.
Do we have to use lawyers to mediate?
No, you do not. You can leave the lawyers out of it entirely, or you can at least save them for the end. Here are some common approaches:
- Agree with your spouse to use a particular mediator that you both choose after doing your research. Come in and we’ll figure out a resolution to the issues together. After signing a settlement agreement, we can give you all the forms you need for free to create a dissolution packet that you can send to the court. The court will then arrange a 5-minute “final hearing” meeting between the petitioner and the judge, where they ask if you understand what you signed, whether you reached the agreement voluntarily, and to verify that you are a Florida resident by showing a driver’s license or another form of ID. Then the judge declares you single, and the process is over.
- Before signing the settlement agreement, you will have the opportunity to run it by a lawyer if you choose to do so. You can ask them to review the document, tell you if you are understanding it correctly, and let you know if you are leaving anything out.
- Use lawyers but no courtrooms. Mediation is a flexible process, so if either or both of you want to retain an attorney, and have them represent you in a mediation, you can do that. Mediators are trained to be sensitive to informational advantages in a negotiation and can make sure that if only one side has an attorney, that that isn’t used to gain leverage or pressure the other spouse into agreeing to a bad deal. An advantage of this approach is that you would have someone who can give you legal advice and be a paid advocate for your side. Your best bet is to hire an attorney with experience in mediations — not just someone who is used to doing trials. Specifically, you should use an attorney who practices “collaborative law”.
How do I make sure my spouse follows the agreement we reached?
The parties can decide how they want to enforce their agreement. Data shows people are more likely to follow through with an agreement they had a hand in creating, rather than one imposed on them by someone else. Part of the solution is to create detailed agreements with specific enforcement provisions that let each spouse rest assured that the other spouse will hold up their end of the deal. The settlement agreement is a binding contract and essentially becomes the law between the two of you. Accordingly, there are a variety of ways that a court can enforce your agreement, including contempt proceedings, fines, and potentially even jail time. If you find you cannot follow the agreement because circumstances in your life have changed since you signed it, you can always come back and modify the agreement the same way it was created.
Doesn’t a judge know best?
Judges rotate into family law from areas such as tort law or criminal law. They have a full docket of cases to get through and you could be the 10th case they hear that week. They simply do not have the time to focus on your case and create a comprehensive, customized agreement like we can.