PALM BEACH DIVORCE RESOURCES: DIVORCE MEDIATION

Nearly all Palm Beach County Divorce Cases are resolved through the Divorce Mediation process.  Sometimes the mediation takes place before a divorce petition is filed and sometimes after.  Sometimes spouses are represented by divorce lawyers in Divorce Mediation and sometimes they are not.  Sometimes Divorce Mediation takes less than two hours but in other cases the process can last several days.  Regardless of when mediation happens, who is present and how long it lasts, the fact remains that Divorce Mediation is the most effective and efficient process for spouses to timely and peacefully resolve their marital affairs. 

Most Palm Beach County Divorce Mediations begin with both spouses and their lawyers sitting at a conference room table with a neutral mediator.  Typically the mediator is a lawyer who is familiar with Florida’s Divorce Laws.  The mediation session will begin by the mediator explaining the mediation process to each of the spouses and their attorneys.  Thereafter, to make the process easier (and to keep either spouse from being uncomfortable or intimidated) one spouse and their lawyer will typically leave the room while the other spouse and their lawyer speak with the mediator about their proposed divorce settlement terms.  This process can take place all in the same room when both spouses are comfortable with the idea.

For the rest of the Divorce Mediation, the divorce mediator will work as a “go between” each spouse (typically while they are in separate rooms) and attempt to narrow settlement positions down to the point where both spouses agree on the terms of a divorce settlement.  During some mediations each and every single issue (property splitting, spousal support, timesharing with children, and child support) are resolved.  In other Divorce Mediations, some but not all of the issues are resolved on a temporary or permanent basis. 

Once the parties agree to the terms of their settlement the divorce mediator or one of the lawyers will typically prepare a Marital Settlement Agreement for the spouses to sign before the mediation ends.  The goal of this process is for the spouses to leave the Divorce Mediation with a signed contract that resolves all of the legal issues of the divorce. 

Once a divorce settlement is reached it will be submitted by one of the lawyers to the divorce court judge for approval.  In nearly all cases the divorce court judge will approve the settlement reached between the parties.  Divorce judges almost always honor the agreement of the parties (figuring that it is typically the best for parties to work out divorce under their own terms without unnecessarily spending their money or burdening the court). 

Below are answers to some of the most commonly asked questions Palm Beach County Divorce Lawyers receive about Divorce Mediation and the Divorce Mediation process.  

What are the advantages over Divorce Mediation over Divorce Litigation?

The advantage of Divorce Mediation is it allows the parties to resolve all issues of their Florida Divorce Case according to their own terms.  Divorce Mediation allows spouses to be creative with splitting property, sharing time with their children, and determining any terms of spousal or child support.  Further, spouses are more likely to comply with the terms of a settlement agreement reached through Florida Divorce Mediation than they would be with a divorced determined by a judge after a trial.  Moreover, overburdened divorce court judges simply do not have the time or motivation to come up with a court order that contains the carefully thought out details of a settlement agreement that can be reached through Divorce Mediation.

Furthermore, Divorce Mediation is a more financially efficient process than divorce litigation.  The cost of each spouse hiring a competent divorce lawyer to review their financial and family situation for purposes of creating a fair agreement based on Florida Law is much less than the cost of having that same lawyer spend several months conducting depositions and 50 to 100 hours preparing for and attending a 1-3 day divorce trial at an hourly rate of $300-$500 per hour.

Finally, Divorce Mediation is a much more peaceful process than divorce litigation.  Instead of spouses working against each other as “litigation opponents” they are working together with each other for the purpose of resolving their marital affairs.  Divorce litigation breeds “conflict” while Divorce Mediation facilitates “solutions”.  This is especially important when children are involved as both spouses will need to work together after their marriage is over for the benefit of their children.  This is much harder to do after both spouses have incurred the high cost “emotional and financial cost” of divorce litigation.

What happens in a Florida Divorce Mediation?

In a Florida Divorce Mediation the parties control exactly what happens.  In most instances, the parties will separate into separate conference rooms with their lawyers after the mediator meets with everybody to explain how the process will work.  Typically the mediator will go back and forth between each room to help the parties agree upon settlement terms. Most Palm Beach County Divorce Lawyers prefer to have the spouses in separate rooms as there is less chance that one spouse will become upset (which makes settlement harder to obtain).  However, if both parties desire, everything can be done in the same room.

Do I have to settle my case during a Florida Divorce Mediation?

No, settlement is not required in a Florida Divorce Mediation.  If either spouse is feeling uncomfortable, or is not happy with the proposed settlement terms, there is no requirement that any settlement be reached.

Is a Florida Divorce Mediation confidential?

Yes. Everything that happens in a Florida Divorce Mediation is confidential.  Nothing that is done or said in a Florida Divorce Mediation can later be used as evidence at court.  The theory of this is that spouses in Florida Divorce Mediations should be encouraged to speak freely about their situation in order to promote a full settlement.  If Divorce Mediation was not confidential the spouses would be more hesitant to be honest and open during the process.  The only exception to the Confidentiality Rule is that a mediator is required to report any comments about child abuse or intention to commit a crime.

What if I am uncomfortable negotiating around my spouse?  Won’t my spouse intimidate me during the Florida Divorce Mediation?

The exact format of Florida Divorce Mediation can be flexible.  This flexibility allows spouses to be in different rooms (or offices for that matter).  The mediator is able to go between different rooms or law offices so there is separation and both spouses are comfortable.  Oftentimes though, mediation will start with both spouses at the same conference room table while the attorneys give the mediator a background of the case, and once the negotiations begin the spouses separate into separate rooms.

What has to happen before a Florida Divorce Mediation takes place?

Many of the best Florida Divorce Lawyers will recommend holding off on attending mediation until the spouses have exchanged their financial information.  The theory to this is both parties should have an intelligent idea of the marital assets, liabilities, income and expenses before negotiating a settlement agreement that divides their assets, liabilities, and in some cases, income and expenses.

When both parties have a full understanding of their financial situation it is not always necessary to exchange multiple years of bank statements and credit card statements before attending mediation.  However, when one spouse has been handling most of the marital financial affairs lawyers will often recommend (or require) the exchanging of financial records before mediation.

Can I attend Divorce Mediation in Florida before filing for divorce?

Plenty of people attend Divorce Mediation in Florida before filing for divorce.  When spouses settle their marital affairs before a divorce petition is filed, the process that comes afterwards is known as an “uncontested divorce”. 

Pre-Divorce Mediation is most useful when both spouses are “on board” with the idea of divorce and are motivated to resolve all of the marital affairs.  Pre-Divorce Mediation is not effective when (1) one of the spouses wants to stay married or (2) one is being unreasonable with settlement demands.  When a spouse does not want to acknowledge a divorce or accept a reasonable settlement it is often best for the spouse seeking the divorce to file a divorce petition with the court to get “the ball rolling” towards a path for a Florida Divorce Court Judge to decide their case. 

It often takes at least nine months from filing a divorce petition to have a divorce trial date in Florida (sometimes this process takes even longer).  If one spouse is messing around it makes sense to get a trial date as soon as possible while continuing to attempt settlement before a trial date.  Palm Beach County Divorce Lawyers have observed that the “I don’t want a divorce spouses” and the “I won’t be reasonable spouses” wake up and want to settle their case through Divorce Mediation once a trial date has been set.

What is the difference between Divorce Mediation and “Collaborative Divorce”?

Divorce Mediation and Collaborative Divorce are essentially the same with the exception that in the Collaborative Divorce process the spouses must hire new attorneys to represent them if they want to file a lawsuit before all of the marital affairs have been settled. 

Most Florida Divorce Mediations and Collaborative Divorces in Florida utilize the same basic concept of trying to promote “resolution” instead of “conflict”. A “Collaborative Divorce Session” is almost the exact same thing as “Divorce Mediation Session” with the exception that Collaborative Divorce sessions oftentimes only focus on resolving one particular issue between spouses at a time.  In other words, during one Collaborative Divorce session spouses will agree upon dividing the family business, on another session they will agree on to an amount of child support, etc.

Proponents of “Collaborative Divorce” argue the process is better for the family unit because there is less conflict than the traditional divorce obtained through “litigation”.  However, the fact is most divorces obtained through the “Divorce Litigation” route are actually very peaceful with the only “litigation” being the filing of the divorce petition that has to be filed at the end of the Collaborative Divorce process as well.  Proponents of Divorce Mediation argue that Collaborative Divorce is a process that does not work unless both spouses are well versed in the extent of their incomes and assets.

At the end of the day both Divorce Mediation and Collaborative Divorce are effective ways to resolve the legal issues associated with dissolving a marriage in Florida.  Divorce Mediation could be more practical than Collaborative Divorce on the basis that if a settlement cannot be reached, and it is necessary to have a judge decide something, both parties do not have to hire new attorneys who will need to be paid to “learn the case” that the Collaborative Divorce lawyer was already paid good money to learn. 

For spouses that have the “more than average size” marital estate, the Collaborative Divorce process may be best from a psychological standpoint since the entire Collaborative Divorce process is developed around both parties being committed to settlement before a court case is filed.  If Collaborative negotiations fail, these parties still have enough money to afford to pay another lawyer to start from the beginning to learn the facts of their case.

Who is the mediator in Florida Divorce Mediation?

Oftentimes the mediator in Florida Divorce Mediation is a Florida Divorce Lawyer, a retired Florida Divorce Court Judge, or an attorney that is familiar with Florida’s Divorce Laws.  The spouses find it is helpful when the mediator has a solid understanding of laws governing dissolution of marriage in Florida because the starting point for many divorce settlement offers is what each party would receive under Florida Law if they were to have their marital affairs determined and resolved by a judge.  That said, there are a number of highly effective divorce mediators that are not licensed attorneys. Over time, these non-attorney mediators have developed a solid understanding of relevant Florida Laws in addition to an exceptional understanding as how to “massage’ the psychological factors that encourage spouses to reach settlement.

Does a mediator have to be used for a Florida Divorce Mediation?

Florida Divorce Mediation can be accomplished without an actual mediator.  Plenty of spouses resolve their marriages through settlement conferences with their attorneys at a law office.  Certain spouses are able to sit in the same room with their attorneys while settlement terms are negotiated.  In other situations a Divorce Mediation can take place between two lawyers and one spouse, with the other spouse being in another room.

A mediator is not absolutely necessary to have full Florida Divorce Mediation but sometimes mediators can be helpful, especially when dealing with a spouse who is reluctant to settle. Sometime this “reluctant spouse” is encouraged to settle their case once they hear the offer “is fair” from a neutral mediator instead of lawyer or their spouse.