Mediation is an alternate dispute resolution method-in other words it is a process the  parties use to settle their differences before trial.  If you settle in mediation there is no trial.  You are not required to settle in mediation but you should come with an open mind and make a good faith effort to resolve your difference.

Going through mediation is almost universally required by the Florida courts before you can go to trial and for good reason.   No one knows your situation better than you.   Judge’s  are smart, honest and very hard working to be sure but their isn’t one of them that has lived your life and know the marriage like you do.  So Florida courts want to give you the opportunity to decide your own fate in mediation.

So from a layperson view what does mediation look like. Mediation can be requested by either party and ordered by the court.  It is a lot easier if both sides agree (stipulate) to the mediation. Or the court orders mediation as part of the pretrial procedure.  Please take a read the two Florida Family Rules of Procedure 12.740 and 12.741 for the mediation. These Rules and all the other Rules of Family Law available on this website.   Typically, a mediation order will appoint a mediator agreed to by the parties or chosen by the court if the parties can’t agree.  The date, time and  place will be chosen by the parties and with the mediator. A mediator is most often an attorney, trained and Florida Supreme Court certified as a family mediator.

If you are the petitioner, you should have the lead in this process-setting mediation, which means, coordinating the date, time and location for the mediation with the mediator and the other party, then  submitting an agreed (stipulated) mediation order to the court.  The Court will sign the order and the parties will go to mediation.

Suppose you can’t get agreement on mediation.  Then you should file a motion for mediation asking the court to order the parties to mediation.   After you file the motion for mediation, call the judge’s judicial assistant and  a date and time for the motion to be heard.  Prepare a notice of hearing making sure you include the date, time, place, judge’s name and the name of your motion on the notice.  You will need to mail a copy of your notice of hearing and motion to the other party, (you already filed the motion with the clerk before you called the judicial assistant, but after you have the information for the hearing file the original notice of hearing with the clerk too.  You may need to fax a copy of the motion and notice to the judge’s judicial assistant).  As preparation for the hearing make sure you call the mediator’s office and get several dates and times for mediation.  It gives the judge more choices and flexibility in setting the mediation incase the other spouse is trying to avoid mediation.  Most Florida courts will encourage the parties to engage in mediation.

Now you must prepare for mediation.  Do not wait to the last minute to prepare.  The issues and claims you have are too important.   Don’t bury your head in the sand and hope for the best.  This is your chance to settle the case and end the divorce law suit.  List your divorce issues and claims.  Organize your documents, use the Financial Affidavit for a model for organization.  It breaks down all the current income and expenditures, assets, debts of the marriage.  If you are talking about special educational needs of one of your children, go to the school and get the report cards and transcripts.  As you can see it will take time to get matters together so don’t wait to the last minute.

Mediation will be attended by the parties and the mediator.  The mediation rule states the party is deemed to appear at the mediation if the party is  physically present, Rule 12.740(d).  Maybe the other side has an attorney.  The other parties attorney is part of the mediation too.  If the parties agree the attorney may be excluded.

Everything you say in mediation is priviledged and confidential, especially offers of settlement or compromise.  No one can be forced to admit or repeat what they said in mediation unless you are planning a crime or abusing a child.  The mediator and attorneys are bound to report the future crime or abuse.  But it is a bit misleading, you see if you state in mediation that you had an affair and spent $40,000.00 on the girlfriend and having a good old time,  you may be asked that on the stand.   Not didn’t you say in mediation you had and affair and spent $40,000.00 on the girlfriend, but rather the question, Did you have an affair with so and so?   Since the admission in mediation, you had a chance to get evidence or even subpoena her to the trial, to prove the affair.  And then ask, didn’t you spend $40,000.00 on so and so?  Have the evidence to back it up because if you ask the questions and the affair and the expenditures are denied you can not subpoena the mediator to testify he or she heard the other party make the statements and admissions.  Mediation let you know about it but because mediation is privileged you have to prove it by another means outside of the words spoken in the mediation.

During the medation the mediator may  causcas with the parties (meet seperately with the parties) or in joint session ( meet with the parties together) to see if a compromise can be reached, correct a party who may be unrealistic in their demands or expectations. Let me give you an example:  the parties have a marital home.  Normally, it could be sold and the profit split.  In todays market, the mortgage may be many thousands of dollars more than the fallen value of the marital home.   In a word both parties are upside down on the marital home.  Suppose one of the parties want the other party to buy out their interest in the marital home.  The mediator may point out that the marital home represents a net debt not an asset and for one side to expect the other side to buy them out is unrealistic.  There is a lot of give and take in a meditation it is a process of compromise to reach a settlement. You are not obligated to settle in a mediation.  You will not get in trouble if you do not settle.

If you do settle in mediation.  The mediator will type or write up the agreement.  The parties will sign the written mediation settlement agreement along with their attorneys.  The mediation settlement agreement is submitted to the court.  The court will approve the mediation unless there is something wrong with it, like you have five children and for some reason no child support is being paid by either party.  A judge may be curious about that one.  And shortly thereafter you can go to your final hearing and get the marriage dissolved.