When you begin the divorce process, you and your spouse will face issues that seem unresolvable. With the assistance of a mediator, those issues can be resolved in a quicker manner than bringing these issues in front of a judge at trial. Some spouses choose to attend mediation and other are court ordered. See Florida Family Law Rules of Procedure Rule 12.710. During the process, the couple will receive unbiased opinions for settlement from an experienced family law mediator. Pursuant to Florida Statute 44.1011(2)(d), in family matters, the presence of counsel is not required. See Florida Mediation.
As stated, the mediator is unbiased. This means they are not trying to let one party “win” and they cannot force either party into making any decisions. With that being said, if the spouses do not reach agreed upon resolutions for their issues, they will then need to go to trial and have a judge make the decisions as to the unresolved issues. There are some myths related to the divorce mediation process, including:
“Mediation is always the best choice.”
This is false. There are certain cases where mediation would not be appropriate. If one spouse has a drug or alcohol problem, or is suffering with mental health, mediation will likely not be successful and would not be the best course of action. This is the same for cases where there is any type of abuse. In the instances where one spouse is hiding assets from the other, mediation would also not be the best choice as a mediator has no authority to force a spouse to reveal information, whereas a judge does have the authority to do so.
“If I attend mediation, I will end up with less than a judge would award me.”
In the state of Florida, the divorce process includes what we call “equitable distribution.” See Florida Statute – Equitable Distribution. This means assets, debts, and all property are divided “equitable” not equally. Whether you attend mediation or go to court, your case will be subject to equitable distribution. Please note however that Florida mediators only mediate with the information each spouse gives them. If one spouse is withholding information, the agreement may end up not being equitable.
“A divorce mediator can fix the problems between me and my spouse.”
This myth is false. Your mediation will only be as successful as you and spouse let it be. If either of you fail to share certain facts of your case, the divorce mediator cannot assist you in solving your problems. Additionally, if either of you have no interest in resolving anything, nothing will ever be resolved. The mediator is not a magician and can only do as much as you let them.
“My complex divorce cannot be handled through the mediation process.”
Any type of divorce can try the mediation process. These include case with children, complex financial issues, low-income, a large amount of assets, etc. If you are concerned with affording the costs of mediation, See Application for Determination of Civil Indigent Status, as the State of Florida offers discounts for indigent spouses with state mediators.
“The mediation process is not legally binding.”
This myth is false. At the end of the divorce mediation process, if you and your spouse reach an agreement, you both sign a contract called a Marital Settlement Agreement or a Mediated Settlement Agreement. See Florida Marital Settlement Agreement Form. This agreement is legally binding and in the State of Florida, the court will enter a final judgment containing the signed agreement.
The best way to confirm whether a divorce mediation myth is true or false is to meet with a professional family attorney that can answer all of your questions on the topic of divorce mediation.