WHAT IS FAMILY MEDIATION?
Family mediation is a process in which an impartial mediator helps divorced or separated people to make decisions about their children, finances and property. A trained mediator has a neutral role in helping parties to negotiate an agreement, and the decisions made are their own. Mediation is a unique process and does not involve counseling or therapy. Nor is it arbitration where a third party makes the decisions. No legal or tax advice is given by the mediator. The underlying principle is that agreements reached by people themselves, as experts in what is right for them and their children, are more sustainable than court orders.
WHAT MEDIATION IS NOT!
Mediation is not arbitration: Only the parties can determine the outcome.
Mediation is not counseling: Mediation is entirely different from marriage and relationship counseling. The idea of mediation is to encourage the parties to focus on issues that are causing disputes and to enable them to reach agreements that suit each party.
HOW DOES IT WORK?
The mediator helps both parties, along with their lawyers, if any, to work out and explore all their options, and to reach an agreement that is put in writing. The mediation rules require that for an agreement reached at mediation to become binding, it must be reduced to writing and signed by both parties and their attorneys (if any). With very few exceptions, once the agreement is signed, it is immediately binding on the parties.
Most Agreements that are reached are submitted to the Judge for approval and become part of a Court Order or Final Judgment, unless the Parties agree not to submit it to the Judge. The Judge will retain the power to enforce the terms of the Agreement just as if the Judge ruled on it him or herself.
Generally, but not necessarily, everyone starts off in the same room, where the mediator explains the process and his qualifications, and each party, or his or her attorney, explains the factual history and issues to be dealt with. Many times, after this group discussion, the mediator will break each side into separate rooms (called a “caucus”.) The mediator will meet privately with each side and go back and forth between rooms.
IS IT CONFIDENTIAL?
Mediation is entirely confidential except for very limited exceptions. Absent an exception to this rule, no one may discuss what took place at mediation with the Judge. Each party involved in a mediation proceeding has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding.
Just as the entire mediation process is confidential, so are the discussions during “caucus”. If there are matters that you do not wish shared with the other party, let the mediator know and he will not disclose the same without your permission. All oral or written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119 (public records) and shall be confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise.
There shall be no privilege and no restriction on any disclosure of communications made confidential in connection with the following: a) child abuse or neglect; b) spouse abuse; c) the commission of a crime or fraud or as part of a plan to commit a crime or a fraud; and d) public hazards.
WHAT ARE THE BENEFITS?
Mediation helps people to:
Exchange views and information: Sometimes, hearing both parties’ perspectives on issues allows each party to “step back” and see things in a different light.
Reach their own decisions: The decision making is left up to you, as opposed to a Judge. A Judge will give you limited time; is constrained by certain evidentiary rules and procedures; and must, many times, base his or her decision based upon the credibility of each sides witnesses and of you. You are almost always better off taking the decision making process out of the hands of a third party and gaining control over the issues at hand.
Flexibility and Specificity: There are many things that the parties can agree upon that a Judge does not have the authority to do, but which a Judge will approve if both of you agree. You can also be as detailed as you wish, many times paying much more attention to the details to meet your goals, much more than a Judge may ever do.
Reduce conflict: Agreements reached by the Parties, as opposed to a Judge telling you what will be, generally results in less acrimony in the future, and generally results in a greater likelihood of compliance. Remember: Most Agreements that are reached are submitted to the Judge for approval and they become a part of a Court Order or Final Judgment. The Judge will retain the power to enforce the terms of the Agreement just as if the Judge ruled on it him or herself.
When there are children involved: Children whose parents reach an agreement through mediation are happier; more secure; more reassured; less distressed. By avoiding the adversarial process, the stage can be set for the continuing cooperation in raising children, and for each of you to make a fresh start.
Cost efficient: In most instances, mediation is substantially less expensive than going to court proceedings.
HOW LONG DOES IT TAKE?
Mediation sessions usually last between two to six hours. The number and frequency depends on the complexity of the issues and the pace with which the parties feel comfortable. Sometimes, more than one session may be required.
THE ROLE OF THE FAMILY MEDIATOR
The Mediator facilitates communication and problem-solving; behaves in a neutral, unbiased and non-judgmental manner; provides a safe and supportive setting; ensures that discussions are meaningful and respectful; assists the parties to identify needs, make decisions, and craft their own agreements; and encourages the parties to assess their current financial situation and determine how they will provide for future needs.
LEGAL ADVICE AND ROLE OF INDEPENDENT LEGAL ADVISOR
Mediators are neutral and impartial, so even legally trained mediators cannot offer legal advice. It is important for each party in a mediation to look to their own independent lawyer (should they choose) to learn how the law affects them and to help them evaluate the choices they will be making in mediation. The lawyers also are best able to help each party to organize and present the detailed financial disclosure that is required in all family law cases, whether mediated or litigated.
Mediators are not Judges. The Mediator does not make any decisions for the Parties, nor does he have the power to do so. The ultimate decision to settle and under what terms are solely left up to the Parties, with the advise of their attorneys, if any.
ABOUT YOUR MEDIATOR
Gary S. Maisel, Esquire is a licenced attorney in Florida and practices primarily in the area of family law. He has been practicing in Broward County since 1986. He is also a Certified Mediator in the area of Family Law, approved by the Florida Supreme Court, and has mediated over three thousand family cases.
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