Understanding Mediation in Family Law:
The difficulties of divorce on both parties often leads to breakdowns in communication and often makes for a difficult resolution.
Mediation involves employing an impartial third person to facilitate communication between the parties.
Often times, a mutually acceptable resolution can be reached through the cooperative dispute resolution process mediation provides for.
The responsibility of the mediator is to be completely impartial to either party, to ensure a safe environment for communication, and to provide a structure and order.
During your meeting with the mediator, any conflicts between the parties are managed and kept to a minimum. During the negotiation process, the mediator will collect and organize date and information, provide education, and assist both parties in evaluating their available options. The mediator will not draft an agreement until the parties have reached an agreement.
An advantage of mediation versus going to court for typical litigation would be flexibility. When going to court, litigation can take anywhere from a few months to several years. But with mediation, the clients determine the pace of the process and nothing happens at all without mutual consent between both parties. Mediation also helps to conserve resources, however, in the event that future litigation or arbitration might be necessary, all options are preserved and parties may participate in mediation at any time without limiting their future legal options.
One important thing to note is that an attorney mediator will not give either party independent legal advice. During the mediation process, the attorney mediator may provide the parties with any legal information they may need or request, but again, this is not independent legal advice. And when constructing their agreement, the parties may or may not decide to use the information provided by the mediator. For example, the mediator may give the parties an idea of what the likely court outcome would be. Some may choose to use that information for the framework of their agreement, or they might choose to ignore it. Regardless of how the agreement is reached, the parties must take it to an independent attorney for review. Once any and all final revisions are completed, the mediator would then prepare and file the necessary paperwork with the court.
Dispute resolution is accomplished through several methods, and determining which one you use is entirely an individual choice. Entering into mediation is often the best way for a husband and wife to resolve conflicts with minimal negative impact while increasing their chances of being able to cooperate with one another. This is especially important when children are involved as this creates the need for some kind of co-parenting relationship to continue, at least until the child becomes an adult.
Mediation is not always possible, and this is usually the case where parties fear one another or are in endanger themselves around each other.
However, in some cases, it is possible for parties to reach an agreement on their own without the need for a mediator, and they would simply just take the agreement to their individual attorneys for review to all issues are covered properly.
Once this step is complete, your family law attorney will then assist in memorializing the agreement or taking any necessary steps to make the agreement legally binding.
In any proceeding in which the issues of parental responsibility, primary residence, visitation, or support of a child are contested, the court may refer the parties to mediation in accordance with rules promulgated by the Supreme Court. If an agreement is reached by the parties on the contested issues, a consent order incorporating the agreement shall be prepared by the mediator and submitted to the parties and their attorneys for review. Upon approval by the parties, the consent order shall be reviewed by the court and, if approved, entered. Thereafter, the consent order may be enforced in the same manner as any other court order. [Based on Florida Statutes 61.183]
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Content authored by Frank Fernandez