Mediation is a settlement process where a neutral third party, a mediator, assists the parties by facilitating settlement discussions to resolve the outstanding issues in the divorce case. During mediation, the parties remain in control of the outcome, and if they can come to a mutual agreement, the case resolves voluntarily on terms approved by the parties. In contrast to mediation, a trial is a completely different ball field, where parties lose the control to decide the elements of their divorce and instead opt to have a judge make those determinations.
In many instances, it is far more desirable to settle a case at mediation than to go to trial. At mediation, you and your spouse will have the ability to:
- Openly discuss issues.
- Make decisions together about how you will divide your assets or debts.
- Determine how you will continue to interact and spend time with your children.
- Make agreements that the court may not be able to order.
You know the saying, “What happens in Vegas stays in Vegas.”
That is what mediation is like—except not as much fun.
One of the most important things to remember is that mediation is a confidential process. Anything that is said at mediation must stay within the mediation. There are some exceptions to the confidentiality rule that your mediator or attorney can explain to you, but for the most part, no one can repeat what is said at mediation, not even to relatives or close friends. Similarly, what the parties discuss in mediation cannot be used as evidence at a later trial. The confidentiality rules are in place so that people feel comfortable discussing the issues in the case in order to try and reach a voluntary resolution. The goal is to settle the matter without fearing that the other party will use what they say against them later in a court proceeding. In other words, if you were willing to give in on an issue to get the case resolved early, but you will push the issue if you have to spend the money to litigate the case, your spouse cannot use your offer in mediation to establish at trial any facts or elements in the case.
Before mediation, you and your attorney will probably review documents, including those provided in the discovery phase, to help you make informed decisions regarding your case. Your mediator or attorney also should tell you in advance what to expect during mediation. To have a meaningful conversation about how to settle your case, you need to know in advance what you would like in settlement, what you are likely entitled to receive and what you believe your spouse is likely to agree to.
During mediation, you will most likely discuss and or address these aspects of your settlement:
Parenting plan issues, which may include, but are not limited to:
- Time sharing schedules.
- Responsibilities for decision making related to children.
- Communication methods and technologies.
Equitable Distribution, or how to value and divide all your assets and liabilities. Which may include, but are not limited to:
- Who will stay in the marital home or whether the home and other real estate will be sold, and the terms of occupancy, handling of related debt and or the sale of the assets.
- Valuation and division of any retirement assets, if any, and the terms of that division.
- Valuation and division of various forms of equity or deferred compensation, if any, and the terms of that division.
- Valuation and division of any equities, securities or closely held businesses and the structure of the division.
- Whether one spouse will pay alimony to the other spouse and the amount and duration of any such support.
Child support issues, which may include, but are not limited to:
- What net income number will be used for each party in reaching the presumed amount of support.
- What amounts are paid for health insurance both for the parties and the children and whether one party will be responsible for health insurance for the children.
- How uncovered medical expenses or necessary day care expenses will be allocated.
- Whether the support will be consistent with the child support guidelines or a deviation.
Any agreement for one party to assist the other with attorneys’ fees. Other issues that are important to your family and or children.
If you and your spouse can reach an agreement in mediation, then the agreement will be submitted to the court with other documents related to your case. The judge will review the agreement to make sure that it doesn’t contain anything that is against Florida public policy or that is not in the children’s best interests. Once the judge approves the agreement it will likely become an enforceable court order and/or a contract. If the mediated agreement resolves all the issues in your case, the court will enter a final judgment granting your divorce. If you are unable to reach an agreement during mediation, your case likely will go to trial.
Mediation can be a quick process that can save you a substantial amount of time and money if you are able to reach an agreement. The process is confidential, unlike most court proceedings, which are public record. It can limit your children’s exposure to divorce, if one party intends to have the children testify at trial. In addition, if you reach an agreement, you and your spouse—not a judge—will be architects of your futures. You do not have to go to trial, and you can avoid having the judge tell you and your spouse how you will live your lives.
A word of caution about mediation: It is just as significant and important as any other phase of your case. You and your attorney should be as prepared for mediation as you would be for trial. At best, if you are unprepared, you could waste time and money unnecessarily because you have inadequate information to make necessary decisions. At worst, if you are unprepared, you could enter into an agreement that is ill-advised and with which you are stuck because you failed to investigate the facts or secure the necessary information or legal representation needed for mediation.
The mediator cannot provide you with legal advice and cannot protect your interests—the mediator is there only to facilitate settlement. So, keep in mind that if you choose to represent yourself at mediation, you are doing just that. If you reach an agreement that you sign in mediation, even if you have signed it without the assistance of counsel, you will be held with that agreement, except in very limited circumstances.
The attorneys at Nicole L. Goetz, P.L. have extensive experience in handling mediation and litigation and can assist you throughout the entire process. To schedule a confidential consultation and receive more information about your options, please contact our office in Naples, Florida at 239-325-5030.
The information provided on law and legal topics is designed for general information only and does not constitute nor should it be considered legal advice. It is not a substitute nor should it be considered a substitute for legal advice from a qualified attorney knowledgeable about your specific factual situation.
