Many people have heard the term “mediation”, but may not know much about it. Below, we have tried to answer some of the basic questions about mediation. Just click on the underlined questions below, and the answers will appear. We hope that you find what you need. If you have any further questions, please do not hesitate to ask!
MEDIATION PROCESS: Mediation is a voluntary and an informal process. As mediators, we have no authority to make decisions or impose settlements. Instead, our goal is to facilitate your discussions and assist in the negotiation process to help you explore a mutually acceptable resolution. We will not provide legal advice, testify in any future court proceeding, or present this case in court. For additional information regarding the mediation process, please review the information provided on the website sponsored by the Florida Courts.
CONFIDENTIALITY AND PRIVILEGE: Confidentiality is a cornerstone of the mediation process. We will treat all information disclosed to us before and during mediation as confidential, except where disclosure is required or permitted by law. Additionally, the two of you and any other persons who attend mediation are also required to keep all mediation communications confidential. A breach of this confidentiality may be subject to remedies. As part of our commitment to the confidentiality of the process, we will not voluntarily testify in court and any person who subpoenas or otherwise compels a mediator’s testimony shall be solely responsible for the mediator’s related legal fees, expenses, and time spent.
PARTICIPATION OF OTHERS: Participation at mediation is limited to the husband/father and wife/mother. If you agree, other people who may be integral to the process may also attend. We suggest that this be arranged at least 24 hours in advance. Children should not be brought to the mediation session.
FINANCIAL DISCLOSURE: Before your divorce is final each of you will be expected to fully disclose your financial information to each other and to the court. We will assist you in preparing financial affidavits if you choose the Full Service Package. Basically, the financial data falls into four categories – income, debts, assets, and expenses. Now is a good time to begin thinking about and gathering this information and/or running a credit report. If possible, please bring any relevant financial information with you to mediation. If you have minor children of the marriage, we will request the income/debt portions of the Financial Affidavit be completed by each of you prior to mediation.
SEPARATE SESSIONS: If at some point during the mediation process we believe that a separate session with either of you (in person, by phone, or via email) will aid the negotiations, we will call for a separate session. Either of you may also request a separate session. Please let us know, at the end of these separate sessions, if you would prefer we not discuss with your spouse some or all of the information you shared with us during the separate session.
Mediation works essentially the same in divorce cases as it does in other kinds of civil cases. You and the other party meet with the mediators, in a confidential setting, and the mediators helps the two of you try to reach a deal to resolve the issues in most divorce cases. The most common issues in divorce mediation are:
- Parenting – both parental responsibility and timesharing with the minor child(ren)
- Equitable Distribution of the marital assets and debts
- Alimony – whether and how much will be paid and by whom
- Child Support – the amounts are usually calculated based on a formula dictated by Florida Statutes
- Everything Else – any other items the parties may wish to discuss
The mediators may meet with both of you together, individually with each of you, or go back and forth between you. The mediation may also take more than one session, depending on how much time is initially scheduled and how quickly the both of you are able to reach an agreement – if you do.
One big difference between divorce mediation and most other kinds of mediation is that a court is ALWAYS involved even if the parties reach a deal. You cannot just agree to be divorced; the court has to order it. Florida law makes it relatively easy for people who are not represented by attorneys, but who have entered into an agreement that works out all the issues, to get a divorce. There are some forms you and your (soon-to-be) ex-spouse must complete. You can find a list of these documents H E R E (please note, some circuit courts have specific versions of the forms they want you to use, and they may also require other forms, so check with your local Clerk of Court).
Neither one of you is required to have an attorney to file a divorce, but the divorce mediators of your case – even if he or she is an attorney – cannot represent you or give you legal advice in connection with the divorce.
No. In Florida, mediation is based on the principle of self-determination. So, you (and the other party or parties) to the mediation decide whether there is a deal and, if so, what the terms of that deal may be. If you don’t agree, there is no deal, and the dispute will be resolved in court.
Note: “Settle” isn’t a “four-letter word.” Just because you don’t have to reach a deal doesn’t mean you shouldn’t seriously consider it. During mediation, it is not uncommon for the mediator (and your attorney, if you have one) to point out the many reasons why it might make sense for you to settle the dispute in mediation, rather than take your chances in court.
Among the most common reasons people choose to settle at mediation are:
- the reduced cost in legal fees and expenses
- the much shorter time to conclusion (a few hours instead of several months or years in court)
- the huge relief of having the matter resolved (instead of hanging over your head)
- the ability to get at least some of the outcomes you might seek, whereas you may wind up with none of what you wanted if you let the court decide
- the fact that parties can agree to resolve their dispute, rather than just the specific things that a court could award – so parties can get creative in their mediated settlement agreement, if you both wish
Having said all that, the ultimate decision, about whether and under what terms to settle at mediation, rests with you and the opposing party or parties.
Only you can answer that question.
The mediator isn’t your lawyer. Even if the mediator is an attorney, the mediator is there as a neutral third party. The mediator does not represent any party in this matter and cannot give any legal advice to either of you.
If you are not currently represented by an attorney but you have legal questions about the divorce (including what you might be entitled to if you were to go before the Judge on a contested, attorney-driven divorce, or what to accept as a “good” settlement), we suggest you consult with an attorney before the mediation, so you may make informed decisions during the mediation about whether and under what terms to reach agreement. Many attorneys will speak with you on a consultation basis, rather than a full “I’m going to represent you in court” basis.
In family mediation, you are also encouraged to consult with an attorney prior to signing your Marital Settlement Agreement (including Parenting Plan and Child Support Guidelines Worksheet as appropriate), you may choose to have an attorney and/or an accountant review your agreement.
It varies, depending on the type of case, whether attorneys are involved, whether the parties are trying to resolve the entire dispute in one session or over multiple sessions. Other than small claims court mediations – which usually only last about half an hour, mediation sessions usually range between two and six hours. In divorce mediation, it is not uncommon that you will actually have two or more mediation sessions, each lasting about two – three hours.
Because a Florida Supreme Court certified mediator may be better qualified to assist the parties explore resolving their dispute.
A Florida Supreme Court certified mediator is someone who has completed classroom training, has met certain minimum educational and experience requirements, has completed additional “on-the-job” training, and has passed a limited background screening. Such a certified mediator is also required to stay current with mediation practice through continuing education.
There are two other big reasons to use someone who is certified. Florida Supreme Court certified mediators:
- Bring statutory confidentiality to the process (just by mediating with a Florida Supreme Court certified mediator, the mediation is automatically covered by Mediation Confidentiality and Privilege – see Fla. Stat. § 44.402(c)
- Are trained and required to abide by the Florida code of mediator ethics (the Florida Rules for Certified and Court-Appointed Mediators, Fla. R. Med. 10.200 – 10.690). Thus, your mediation experience will honor the three core principles of mediation in Florida: party self-determination; mediator impartiality; and confidentiality of the process.
To obtain an uncontested divorce Florida, there are additional costs you will need to pay to the appropriate agencies. Some of these costs or charges are listed below. These costs are NOT included in our Package Fees.
- Document Preparation: If you have not selected the Full Service Package, you will need to pay any costs associated with completing the remaining standard, required documents.
- Consulting Fees: Prior to signing your Marital Settlement Agreement, we suggest you both consult with lawyers and/or tax professionals.
- Circuit Court Filing Fee: Regardless of the package selected, you are responsible for paying the filing fee to the local court in which you will seek dissolution of your marriage. The Clerk of the Circuit Court currently charges a $408 filing fee for a dissolution of marriage case in Hillsborough County.
- Parenting Class: Divorcing parents of minor children in Florida need to attend a mandatory 4-hour Parents of Divorce class. While your case can be filed, a Final Hearing date will not be set until both parents have completed and filed certificates of completion for the required class. Find approved providers here. Scroll down to the appropriate Circuit Court / County for a list of approved courses. The price is approximately $40 each for the class. Important: If you have already taken, or choose to take, a class that is not on the list of approved programs for your Circuit Court, you run the risk of your final hearing date being delayed until both parents have completed a parenting program that will be accepted by the judge assigned to your case.
- Preparation of Complex Legal Documents: Finally, each family is unique. If, as a term of your Marital Settlement Agreement, you require the preparation of certain complex legal documents, such as a Qualified Domestic Relations Order (QDRO – required to divide certain types of retirement accounts or pensions), a quit-claim deed, or a special needs trust, all of which are beyond the scope of mediation services and document preparation services, we will provide referrals to outside legal services/resources for preparation of those documents. You will be responsible for the cost of any outside services.
We always recommend consulting with an attorney to answer questions about your rights in connection with a proposed divorce. Counsel can help you understand your rights and those of your spouse.
If you meet with an attorney, we recommend you ask (among any other questions you may have) the following question:
If contested, what do you believe would be the best and worst case scenario if this went before a judge?
By asking that question of an attorney, you will get a better understanding of what you might face if there were no agreement between you and your spouse about how to address the various issues that come up in the divorce context. That information helps you determine what you might be willing to offer or to accept in divorce mediation.
If there is a premarital agreement (we’ll call it a “pre-nup” here) and it is valid and enforceable (see, e.g., Fla. Stat. Section 61.079, entitled “Premarital Agreements”), then its terms would, barring certain circumstances, direct how the parties had already agreed to handle equitable distribution of marital assets and debts, spousal support, etc. in the event of subsequent dissolution of marriage. UNLESS, as defined in Section (6) of that statute: “AMENDMENT; REVOCATION OR ABANDONMENT.—After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.” If you have questions about any of the above information, we encourage you to see counsel.
Otherwise, it is up to the two of you:
- If you both agree there is an enforceable pre-nup and you both agree to how to interpret those agreements and wish to include them in your uncontested divorce as terms in your Marital Settlement Agreement OR if you both agree to abandon and/or revoke any of the terms in the Premarital Agreement, then we are happy to assist.
- However, if you do not both agree:
- As to whether the pre-nup is enforceable, and/or
- On the meaning or interpretation of any of the pre-nup’s terms, and/or
- To abandon or revoke the pre-nup,
…then our process is not a good fit for you and we would recommend you seek counsel (representation by a lawyer in a traditional divorce litigation process where a lawyer is involved to ensure your rights are protected).