Mediation and Divorce

I always advise my clients of the option of early an alternative dispute resolution or mediation provided there is sufficient kowledge or discovery of the marital assets and marital debts involved in the divorce. An agreement mediated by my clients with the assistance of attorneys is likely to be a more comprehensive document than a judgment received after a trial. Therefore, mediation is a powerful mechanism for the quick and efficient resolution of a divorce case and is successful most of the time. In Florida, mediation is mandatory prior to setting trial or a temporary hearing. When mediation occurs, the lawyer continues to be involved but in a different role. One of the important and critical decisions to be made when deciding to mediate, or being required to do so, is the selection of the mediator that is appropriate for your case.
In child custody and related issues, clients need to be cautioned as to the possible consequence of mediation. Mediation is usually viewed as a privileged session. However, a divorcing spouse airing his or her strengths may alert his or her spouse to weaknesses or strenths of the case, thereby providing the opponent an opportunity to strengthen his or her case.
There also needs to be an understandubg of the dynamics of mediation. The mediator is simply attempting to facilitate the decision-making process and is not a decision maker. Unfortunately, when one party or their attorney is intractable as to his of her positions, the mediator may focus on the more flexible party to see if that party will move from his or her position. In these situations, one of the participants may sacrifice his or her positions for no apparent gain.
A client will be unable to effectively mediate financial issues if he or she is unaware of the nature and extent of the family assets, liabilities, income, and expenses. The client should be conversant with the disclosure form and be comfortable in relying on it during the mediation session. If questions concerning full disclosure, accuracy, or the like exist, mediation is premature. To the extent valuations are necessary, the practitioner should work with the client to select either a joint or independent appraiser to appraise businesses, real estate, defined contributions plans, etc. Without valuations, the client in mediation could be taking on significant risk and the practitioner could ultimately be blames.
Prior to mediation, the attorney should also discuss the disputed issues with the client and advise him or her as to how the law would be applied if the case were to be litigated. The mediator should not be expected to give the client legal advice.
Last, the attorney should continue to counsel the client throughout the mediation process. The mediation agreement should be thoroughly reviewed for accuracy because once it is signed, there is little chance of having the agreement voided in whole or in part.
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Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. Contact his office at 407-629-1886 or visit Attorney Michael Fender’s main website.