The Role of Mediation in Divorce: Achieving Mutual Agreements Efficiently

You may have heard about people in lawsuits “going to mediation,” or perhaps having settled the case in mediation. But what is mediation, and how and why does it play such a large and important role in divorce and family law cases?

What is Mediation? 

Mediation is a method for resolving legal disputes. In mediation, both sides will be together in the same room and present their respective sides of the case to each other. A mediator will act as a “go-between,” or conduit, communicating both sides’ positions to the other. Mediation is not a trial—it is more of a presentation of the parties’ positions, telling the other side what could or would be presented, if and when the case went all the way to a trial.  

The parties can, but do not have to, speak at mediation. Often, if they are represented by an attorney, the parties will not be asked any questions directly, and do not have to testify, the way they would in court, in a trial.

The mediator is not a judge-he or she does not make any decisions in the case. All the mediator does is try to bring both sides of a legal dispute to their senses, and try to get the parties in the lawsuit to meet in the middle.

If the parties settle the case, the mediator (or the attorneys for both sides) will draw up a mediation agreement, memorializing what the parties have agreed to, and the case is done. If the case does not settle at mediation, the case goes on as normal. 

Everything said at mediation is totally confidential, so parties are free to communicate what they want at mediation, without fear that it could be used against them later, if the case does not settle at mediation and continues to be litigated.

Why is Mediation so Vital in Divorce Cases? 

Mediation is not unique to family law—it is used in every type of legal case. However, it does play a significant role in family law.

Family law has two aspects to it that mediation can directly help with: complexity and emotion.

Family law cases are complex, with numerous issues in just a single divorce. A typical divorce case can have issues related to property division, alimony, time-sharing, child support, and other issues. Any one of these issues, alone, would be significant litigation—compound them together, and you see why it can take years to get a divorce—and why a full-blown trial on all of these issues can be very expensive.

But mediation can allow the parties to resolve these issues, outside of court or instead of a full trial. Even if mediation is not 100% successful, it can be partially successful—for example, parties may resolve property division and alimony at mediation, and then continue to have a trial on the other issues in a divorce (or resolve those issues later on). This can limit the time and expense of the divorce.

Divorce cases, of course, have a lot of emotion.That emotion does not go away just because you mediate. But a good mediator can often try to strip away some of the emotion, allowing parties to a case to think rationally, and make decisions based on economics and family and logic, not just on passion or anger. A good mediator can sometimes get parties who are hostile, belligerent, or irrational to come to their senses and work out agreements with a clear head.

When and How Does Mediation Happen? 

Mediation can happen at any time in a family law case, including before the divorce case itself is even filed. Many parties do seek out mediators before filing the actual divorce. That way, if the mediation is successful, and an agreement is reached on all issues, the divorce is a simplified or uncontested divorce—all the court has to do is ratify the mediation agreement and enter the divorce.

This approach often works best for parties that are amicable or at least rational enough to work out an agreement between them.

After a divorce case is filed, the parties can agree to try to resolve some or all of the issues through mediation. If the parties both want to mediate, the judge will enter an order for the parties to attend.

In other cases, you may not have a choice—in litigation, most family law judges will, at some point, order the parties to attend mediation before giving the parties a trial.

More Flexibility and Control

If you take your divorce all the way to trial, the judge will make whatever decisions the evidence shows are warranted. That may not be a decision that you like or want to happen. Not only that, but the judge is constrained by what he or she can legally do in family law cases. That means that the judge often cannot work out creative solutions, or solutions that fit your (or your children’s) lives.

But mediation allows you to do that. At mediation, you can work out creative “give and take” solutions to your divorce.

Want to limit how often the kids use their cell phones when they are with the other parent? Want your spouse to agree to keep information from your business confidential? Want to make sure that if the house is sold, your parents get back the money they contributed to the down payment? Want your spouse to pay some support for the kids, beyond the age of 18?

These kinds of scenarios—and many, many others—are unique and not things that a judge can legally, or will, order. But you can opt to include them in your mediation agreement.  

All of this means that mediation gives you a great deal of control over your life post-divorce, allowing you to tailor your divorce agreement in a way that best suits you, your children, and your unique situation. You can actually get more in mediation than you could in a trial, in many ways. 

Mr. Diaz is dedicated to his work helping clients with complex family law issues by using collaborative practices to reach peaceful agreements.

His offices are located at 2431 Aloma Ave. #124, Winter Park, FL. 32792 and 3270 Suntree Blvd. Suite 103G, Melbourne, FL. 32940

You may contact Anthony Diaz by calling 407-212-7807 or by email An*****@************aw.com or visit www.AnthonyDiazLaw.com.

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