I wanted to return in this post to a topic I have discussed before -- the benefits of mediation for a divorce or other Florida family law case. It has been about a year since my last post about mediation, and in that time I've continued to become more and more convinced that mediation works, as a way of resolving family law cases.
As an example, a case of a couple who came in for mediation to attempt to settle the divorce action they wanted to file. Neither spouse had filed for divorce yet. In many respects this was a case in which a positive result in mediation was likely - the spouses were getting along well enough to be able to discuss the issues they needed to settle, and both wanted to settle the case without litigation. There were issues to address however. No agreement was reached after an initial two hour mediation session, but the parties left the session, ended up arriving at agreements between themselves, and came back for a final mediation session to address the last remaining issues and prepare a Settlement Agreement. I've also had cases where I am the attorney for one party and didn't believe the parties were going to be able to arrive at an agreement during mediation, but they do.
One or two anecdotes are not a guarantee of positive results in other situations, but one factor that helps parties arrive at an agreement through mediation is that as part of a mediation, each party receives new information to consider, from each other and also the mediator. Although a mediator is not permitted to give legal advice to either party, the mediator can provide general information about Florida law and related issues. You can follow this link regarding Florida Divorce Mediation for more of a discussion regarding the differences between the types of information or guidance attorneys and mediators can provide. In addition, there is an old adage (that I believe came out of research and writing at the Mental Research Institute in Palo Alto, California years ago) - that you cannot not communicate. So even for a mediator who attempts to remain as much of a blank screen as possible and simply serve as a facilitator or intermediary between the parties, the parties will still pick up information from the mediator. It is important I believe for a mediator to recognize that mediation can be a quick process, the potential influence they can have on the parties, and that for all people, including mediators, first impressions and judgments are not always the same as what you arrive at after thinking through an issue more thoroughly. For some issues, although it is helpful for a mediator to think of options or paths to settlement for the parties, it is important for the mediator to not engage in the thought process of beginning to make a value or other judgment about how an issue should be resolved. In any event, the parties receive during mediation and walk away with new information, and my experience is that people take in this information, think about it and what it means for how their case might turn out and how it should be settled, and that this a factor that leads to issues being settled.
There are also ways that a mediator can be more active or directive in asking parties questions about the positions they are taking, in a sense challenging their position, or at least asking them to respond to questions or address the factors they believe support the position they are taking on an issue. In cases where the parties are represented by attorneys, mediators often feel free to be more directive in giving their opinions about issues in the case.
This is by no means a full discussion of the factors that go into a mediation arriving at positive results. There are graduate programs in dispute resolution and much literature regrading the process. There are also the emotional issues underlying any family law dispute that can more or less be addressed in a mediation. The point though that I am making here, is that mediation seems to work.
One issue to consider is that it's worth taking the time to arrive at a thorough Settlement Agreement, and Parenting Plan if there are children involved. The expense of the extra time can be a factor many times, and some times there aren't many issues to address or the parties are comfortable with not being specific in their agreement. But if an agreement is rushed or vague, it can create problems down the road.