It’s estimated that 95% of all divorces get resolved outside of court. Based on my experience as a divorce lawyer I’d agree with that assessment. Most divorces, even hotly contested ones, settle. And most cases settle at mediation or as a result of mediation. There are exceptions, but in many cases a failed mediation signals a failure of the parties and their lawyers to be reasonable, or a lack of preparation prior to mediation. Sometimes there is a novel legal issue that needs to be decided by a judge, but that is rare.
Since mediation is such an important topic and an effective means of resolving a divorce, this article is going to provide information on why mediation is a good option and how mediation works. Most of this is my opinion based on my experience. As always the article is being offered for educational / entertainment purposes and is not offered as legal advice.
I have also written an article providing a general overview of the divorce process, if you are looking for a broader article.
Why Do Most Divorces Settle?
I think it makes sense to first discuss why a divorce would settle outside of court. It establishes the framework for why mediation is such a powerful tool. Divorces settle for a number of good reasons. Here are a few:
The Law is Well Established
The first reason is because the law is well established, so the parties and their attorneys can gain a good understanding as to what a judge would decide at a trial. If the lawyers and the parties already know what a judge would do, or they can estimate a probability of outcomes as to what a judge would decide, then they can use that information to reverse engineer an agreement consistent with Florida law.
Generally speaking, marital assets and liabilities get divided equally per equitable distribution, child support is based on a formula, parenting plans are determined based on the best interests of the children, and start with the presumption that it’s in the best interests of the children to spend significant time with both parents. Alimony is perhaps the fuzziest issue, as there is no real formula for it, but when you consider the duration of the marriage, the relative incomes of the parties, the ages of the parties and their ability to work after the divorce, and other factors, lawyers can provide a range of probabilities for alimony based on the specific facts of the dispute.
It’s Very Expensive to go to Trial
It’s also enormously expensive to take a divorce to trial. That’s because the parties need to engage in depositions and expensive formal discovery prior to the trial. For each hour that a lawyer intends to be in the courtroom, he or she must prepare at least 2-3 hours outside of the court room. Legal arguments need to crafted, direct and cross examinations need to be outlined, and exhibits must be selected and organized.
In addition to the parties, often experts are brought in to testify at court. Experts can include financial experts like forensic accountants, doctors and psychologists to testify about the needs of the children, employment experts, real estate appraisers, and many more.
It can easily cost the parties tens of thousands of dollars to litigate a divorce. In exceptional cases it can cost hundreds of thousands of dollars to litigate. That money comes directly out of the parties’ pockets.
The only guarantee in litigation is expense and uncertainty. You know you are going to have to pay your lawyer a lot of money to go to court. You don’t know with 100% certainty what a judge will decide, because ultimately it’s not your decision. If you don’t like the decision the judge makes, you may have grounds to appeal it, but that takes months and costs thousands of dollars.
Most people don’t want to incur the expense and uncertainty associated with litigation. It can cost tens of thousands of dollars per side to conduct a divorce trial.
Trials are Traumatic
In addition to being hugely expensive, a divorce trial is stressful and highly traumatic to the parties and their families. A trial forces parties to testify against each other. If the parties have minor children together, it’s going to place even more strain on the relationship after the trial is over.
Reaching an Agreement Provides Control and Closure
Finally, by reaching an agreement voluntarily with your spouse, you get some control over the process. You probably won’t get everything on your “wish list”, but you should be able to prioritize and get the things you care the most about. You will generally have more control over the outcome. After all, it’s going to require your agreement to settle the matter outside of court. You may be willing to give on some issues in order to get on other issues. At the end of the day, mediation puts you in the driver’s seat.
It’s rare that the parties are completely happy after settling their divorce at mediation, as it requires compromise to do that, but that’s also a sign that the parties have reached a fair agreement.
Mediation also allows the parties enormous creativity over the outcome of their divorce. Judges can only award certain relief. They have to follow the letter of the law, and it’s more rigid and limiting than what the parties can agree to on their own.
Plus once the parties have reached an agreement, their divorce is essentially over. All that’s left is for the court to ratify the parties’ agreement in a final judgment, and for the parties to carry out the terms. In Sarasota County the parties don’t even need to go to Court after they have reached an agreement assuming at least one side is represented by a lawyer. The paperwork gets mailed in and the judge signs it in her office. The focus can then turn to life as a single person.
What is Mediation?
Mediation is a process where the parties attempt to privately and informally resolve the issues of their divorce outside of court with their lawyers and a third party called a mediator. There is a statutory framework for mediation, and it’s contained within Chapter 44 of the Florida Statutes.
A mediator is a neutral third party that is trained and state certified. A mediator is not a judge. They don’t judge your case and make a ruling. Instead, they attempt to facilitate a resolution by talking through the issues between the parties, finding common ground, and working with the parties to reach an agreement on the issues they disagree on. If the parties can’t reach an agreement, then the mediation ends and the parties have the right to go to court and have their dispute heard by a judge.
The best divorce mediators are often highly experienced divorce attorneys. Some mediators both practice law and mediate, but many are retired trial lawyers who are now dedicated solely to mediation.
The Mediation Process
Mediators facilitate a resolution by going back and forth between the parties to understand the issues of the dispute, find common ground and points of agreement, and work on resolving the issues where the parties don’t agree.
Most of the time the parties are in separate rooms in the same building. The mediator walks back and forth between the rooms spending time with both sides and working towards an agreement. Mediations are typically held at one of the lawyer’s offices, or at the courthouse.
Good mediators will encourage stubborn parties to think about the benefits to settling their dispute, and the risks and expenses associated with litigating their divorces. Mediators will not pressure or force a party to settle.
Mediation is a highly effective process. You can walk into mediation with a number of contested issues, and walk out at the end of the day with a full settlement. Even if you divorce does not settle at mediation, very often it will help facilitate a settlement down the line.
In my experience if the parties and attorneys are committed to resolving the issues of the divorce and if they hire a good mediator, then the likelihood of settlement is extremely high. But the process does take buy in from all parties to be effective.
Mediation is Confidential
Another point to make is that mediation is completely confidential. As part of the process the parties agree not to discuss the details of mediation with any third parties. This privilege is codified in Florida Statute 44.405.
If the parties reach an agreement, then an agreement is drafted and signed, and the matter is settled. Most of the time an agreement is drafted at the mediation.
If the parties do not reach an agreement, then the parties can’t use what happened at mediation against the other side. No one can tell the judge “Well, he offered me X at mediation, so I want at least X.” The entire matter is completely confidential and no one is allowed to present what was said at mediation to a judge or anyone else. There are very limited exceptions for things like allegations of child abuse, and for the planning of criminal activity.
When Does Mediation Take Place?
Mediation should only take place once the parties have enough information to settle the dispute. At a minimum, the parties need to exchange sworn financial affidavits. Any divorce agreement in Florida needs to be based upon full and fair financial disclosure, so mediation should only occur after both parties are satisfied with the financial disclosure.
Ideally the parties should resolve any valuation issues prior to mediation. For example, if one party thinks the former marital residence is worth $200,000.00, and the other party thinks it worth $400,000.00, then the parties should order an appraisal prior to mediation. Otherwise it will be very difficult to reach an agreement.
In a litigated divorce mediation is required before a trial. In many cases it’s required prior to any temporary relief hearings. In this case the court will order the parties to go to mediation. In Sarasota County that’s a standard part of the process. Most counties in Florida have a similar policy.
Sometimes the parties and their attorneys will have a mediation prior to the filing of a divorce petition. This is a called a “pre-suit mediation”. In order for this to work the parties and their lawyers need to be committed to resolving the matter pre-suit and be willing to voluntarily exchange financial disclosure.
Public or Private Mediation?
The parties in Sarasota County have the option to use the Twelfth Judicial Circuit Family Mediation program, or to hire a private mediator.
Public Mediation
Public mediation through the Family Mediation Services program is limited to parties that have a combined gross household income of $100,000.00 per year. Parties that exceed this gross income will need to engage a private mediator.
Public mediation is limited to 4 hours. Sometimes this isn’t enough time to address all the issues in a complex divorce. However, the public mediators in Sarasota County are capable, and if everyone is willing to work towards a resolution I have settled contentious cases through the public mediation program. Even if the parties are unable to reach a complete settlement, we are often able to resolve some of the issues, and it’s very common for cases to settle after mediation.
A benefit to the public program is the cost. The mediator’s fee is $60.00 per person for parties with a combined gross income of less than $50,000.00 per year, and $120.00 per person if the parties’ combined gross income is greater than $50,000.00 but less than $100,000.00 per year.
Private Mediation
A good private mediator can offer divorcing couples a tremendous value by helping them and their attorneys navigate their divorce to a settlement. A private mediator is typically a highly experienced family law attorney who can leverage decades of experience as both a lawyer and mediator to help facilitate a resolution.
Also, there are less time constraints in a private mediation. The parties can take all day if they need to. The only potential downside to a private mediator is the cost. In addition to paying for the attorneys, the parties must also pay for the mediator. A full day mediation is expensive. However, a successful day at mediation is much less expensive and stressful than a trial. It’s not worth stepping over a dollar to pick up a nickle, and it’s not worth cutting corners on your mediation if the alternative is a trial that costs 10 times as much money.
Divorce Mediation – Final Thoughts
I hope this article has been a helpful overview of the divorce mediation process. A mediation is an incredible opportunity for the parties to settle their divorce with dignity outside of court. There are significant benefits to doing this. Good lawyers and an experienced mediator can offer a lot of value to couples going through a contested or complicated divorce.
I also hope this article has provided you with some insight as to how I think about and resolve divorces. If this kind of approach resonates with you, then I invite you to reach out to me by phone or email. I would be happy to discuss the particulars of your situation with you. My office number is (941)-882-4367 and my email is dan@danpolicastrolaw.com.
