WHAT TO EXPECT

WHAT TO EXPECT DURING PRE-SUIT FAMILY MEDIATION

Unlike court-ordered mediation that is required in every litigated divorce or other family matter, pre-suit mediation is an informal and entirely voluntary process, and either party may terminate a mediation session for any reason.  As a mediator, I have no authority to impose a settlement on you, and I will not make any decisions about “right” or “wrong” or tell either of you what you should do.  Instead, my role is to act solely as a neutral facilitator and assist in the negotiation process, helping to identify the issues so you can take control and reach your own agreement and proceed with an uncontested divorce, paternity or other family matter in a healthy and balanced manner.

 

 

The success of mediation depends, among other things, upon open and honest communication, without the fear that any statements made during mediation could come back to haunt one of you should negotiation efforts end without success.  The confidentiality of all discussions and statements occurring during mediation enjoys strong protection under Florida law and is a cornerstone of the mediation process, and all written and oral communications made during mediation are considered confidential and privileged settlement discussions.

 

 

In general, I find that pre-suit divorce and family mediation is most effective when I sit together with both parties and discuss the substantive issues together in the same room.  However, there may be times when I believe a separate session, known as a “caucus,” will aid the mediation process.  In a caucus, I will meet with each of you separately to clarify issues outside the presence of the other party.  The caucus is the only time during mediation that communications may potentially be kept confidential from the other party.  It is your obligation, at the end of any such caucus, to advise whether any information shared with me during the caucus should be kept confidential from the other party.  Even in caucus, however, information that is substantive to the divorce must be shared with the other spouse if the mediation is to continue with any chance of success.

 

Each party is required to file a financial affidavit in a divorce or paternity proceeding, and this requirement generally cannot be waived.  Essentially, each party is required to fully disclose his or her financial information to the other and to the court in the form of a financial affidavit before the divorce or paternity judgment can be finalized.  This information falls into four general categories—income, expenses, assets and liabilities.  I do not require this information at the commencement of mediation, but it can often be helpful to get a head start on the process so that actual time in mediation can be used most efficiently.  Now is a good time to begin thinking about and gathering this information and/or running a credit report if necessary.

 

Almost every couple facing a divorce, paternity or other family law issue can greatly benefit from pre-suit mediation, even when the possibility of reaching an amicable solution seems hopelessly out of reach.  In fact, I believe that the only circumstances in which pre-suit mediation is improper are cases involving severe physical or emotional abuse that prevents a party from speaking freely, or when a party’s judgment is impaired by drug or alcohol addiction, or some other mental disability, preventing that party from freely and willingly entering into an informed agreement.

 

 

While I believe that pre-suit mediation offers the best opportunity to resolve most divorce and other family law matters, there are alternative paths, namely the following:

 

Do-It-Yourself/Pro Se Divorce

Although they cannot give legal advice, Florida law requires clerks of court to make forms available for individuals to handle their own divorce or paternity action on a pro se basis without attorneys.  If you have a very simplified marital estate and have already agreed on the division of marital assets and liabilities, alimony, and parenting issues if there are minor children, then you may be able to handle things yourselves.  That being said, this can be a scary and intimidating experience for many people and much of the process can become overwhelming due to the stressful and emotional circumstances that typically go with the territory in divorce and family law matters.  For this reason, I offer an affordable, flat-rate to prepare all required documents, even if you have already agreed on everything.

 

COLLABERATIVE DIVORCE

In a collaborative divorce, the parties each hire separate attorneys that have typically been trained in collaborative law, and everyone works together outside the traditional adversarial litigation model to achieve a resolution of some or all outstanding issues.  There are usually other neutral professionals involved with this process, such as mental health, financial, parenting, and other professionals.  The attorneys involved in a collaborative divorce are required to agree from the very beginning that they will not represent either party in the event negotiations break down and litigation becomes necessary.  By making such an agreement, the attorneys can fully devote their energies to resolving the case, without any thoughts on how they might strategize in the event a contested court case becomes necessary.

 

TRADITIONAL CONTESTED DIVORCE LITIGATION

Most people feel that their only choice to ensure a fair outcome is to hire separate attorneys, with each spouse paying their lawyers initial retainers that typically range from a minimum of $2,500 to $7,500 or more, which is often only the beginning of an extremely expensive process, depending on the complexity and level of contention between the parties.  In fact, I have seen fees that reach the hundreds of thousands of dollars in high-conflict divorces with complex issues, and that was only for one party.  In the vast majority of cases this is simply not necessary, and unless there are issues of abuse or addiction that preclude either or both parties from exercising their free will in a voluntary process, pre-suit mediation offers a much healthier path that enables the parties to maintain control rather than turning such important and personal decisions over to lawyers and a judge.

Negotiation First

With pre-suit mediation, we focus on the issues right from the start, before the parties have engaged in damaging courtroom battles, and before they have invested too much emotional and financial skin in the game and dug themselves into aggressive or defensive positions.  Judges are required to address the issues in a methodical and business-like manner, and you should strive to discuss your issues in this manner to achieve a healthy and affordable outcome.
X
X

CERTAINTY

The very best attorneys cannot guarantee results, and any honest family attorney will tell you they have often been surprised at the outcome of a trial, frequently after his or her client has spent many thousands of dollars only to reach a bitterly disappointing outcome.  The only thing that is certain about traditional contested divorce and family litigation is the enrichment of your lawyers.  With pre-suit mediation, you control all decisions, and can achieve a certain result with minimal stress and emotional hardship.
X
X
X

CONFIDENTIALITY

Court proceedings are public record, and although certain judges are specifically assigned to divorce and family law matters, these cases are litigated in much the same way as any other lawsuit, even though they can involve issues that are extremely intimate and personal.  Pre-suit mediation allows you to resolve your personal issues in a completely confidential setting, without creating a permanent public record that anybody can see.  Wouldn’t you rather discuss your finances and the intimate details of your marriage in a confidential setting instead of open court?

EMOTIONAL HEALTH

Many people contemplating divorce feel compelled to immediately hire the most aggressive attorney they can afford, and have a strong desire to get revenge on their spouse by dragging him or her through the mud during the divorce process.  Unfortunately, most will find their “day in court” less than satisfying, when they realize that the judge is not only uninterested in such things, since Florida is a no-fault divorce state, but in fact can hold such bad feelings against the complaining party, especially when children are involved in the mix. By setting these feelings aside and engaging in pre-suit mediation, you can reach a conclusion without continually focusing on such negative issues, and can provide much healthier co-parenting when you share minor children, elevating everyone’s emotional health.

CONVENIENT AND FAST RESULTS

In most cases, you can resolve all issues in a handful of mediation sessions, which are held according to your own personal schedules, eliminating the need to ever appear in court, and resulting in a conclusion in a matter of weeks.  In traditional contested divorce and family litigation, you will generally be required to go to court on several occasions, and these court hearings will be dictated by the schedules of the judge and lawyers, without your input.  Contested divorce proceedings can often drag on for years.
X
X

AFFORDABLE FLAT FEES

While you have the power to start a contested divorce or paternity proceeding, once it begins it will take on a life of its own, and the costs often become like a runaway train that cannot be stopped, with each party facing lawyer bills month after agonizing month.  Effective and competent representation is not cheap, and good lawyers work very hard to earn their fees.  At Healthy Family Mediation Center, we offer affordable and comprehensive flat-rate packages, allowing you to minimize your financial distress and maintain complete control over your expenses throughout the process.
X
X