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:

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.

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.

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.