You’re Getting Divorced: Is Mediation the Right Option for You?

You’re Getting Divorced: Is Mediation the Right Option for You?

Most people who consult with a divorce attorney come to the initial consultation with questions about the division of assets, the house, the children, alimony and child support. Naturally, clients want to get an idea of the possible outcomes they can expect, and these are the questions to which they know they need answers. What most people don’t know is that there is a fundamental question that is at least as if not more important than the possible outcome; that is, how are they going to get to that outcome? And by how, I mean by what process will that outcome be achieved?

You see, there are many choices about how you get to the finish line that is a divorce. The process makes a qualitative difference in how you experience that outcome. The choices are: Direct Negotiation, Mediation, Collaborative Process, or Litigation. Direct Negotiation is often the first option eliminated from consideration. If you could resolve this directly with your spouse, you wouldn’t need an attorney or a mediator. There is sometimes an opportunity for one spouse to retain a lawyer to draft a settlement proposal, and for the parties to informally with some assistance negotiate the terms of the settlement directly. But assuming that isn’t possible, the next option that you should consider is Mediation.

Mediation can take several forms. In all mediations, there is a neutral mediator (or two co-mediators in some cases) who is impartial as to both sides and completely neutral as to the outcome. The mediator acts as a facilitator of the structured settlement process, guiding the clients through a list of issues that the clients bring to the table. The mediator does not give legal advice to the clients, but can explain the law to the clients in an effort to educate them. It is always advisable for clients to have legal advice from an attorney of their own choosing as a part of the mediation process, but it is not required. Many attorneys, especially those trained as mediators or collaborative attorneys, offer limited consulting services to clients engaged in the mediation process. They provide invaluable guidance to the clients on what to negotiate for, what to reasonably expect to settle for, and generally assist them with understanding the law as that lawyer sees it applying to the facts of that client’s situation. With that knowledge, the client can then participate actively and more confidently in the mediation sessions, having the benefit of the advice of counsel to guide them. Sometimes lawyers participate in the mediation with the clients. And of course, lawyers review the agreement that is drafted to approve the language and give the advice to the client that the agreement accurately reflects their intention, and encourage them to sign it.

Mediation can take place with both clients (with or without attorneys) in the same room, or with the clients remaining in separate rooms. At any point during a mediation, either party can request to speak privately to the mediator. One of the unexpected benefits of the COVID-19 pandemic was the use of Zoom and other videoconferencing technology to allow mediation to take place with the clients being in the comfort of their own home. Zoom mediation is every bit as effective as in-person mediation. Breakout rooms on the Zoom platform allow for the clients to be in separate rooms as well. Even high-conflict couples can successfully mediate their cases with the right mediator. At Brodzki Jacobs, Nancy Brodzki and Tayane Oliveira are both Florida Supreme Court Certified Family Mediators.

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