During a divorce or paternity proceeding, the parties are required to attend mediation in an attempt to resolves all the issues related to the case. Mediation is the next subject of our service series. The article below will outline the steps of the mediation process and what to expect.
THE MEDIATION PROCESS – In a divorce, paternity or modification proceeding, the parties are required to attend mediation. If the parties come to an agreement at mediation, the case is complete. However, if no agreement is reached, the parties will move forward to trial.
STEP 1) Introductory Remarks: The mediator will wait until both parties are present, and counsel, if applicable, and then make introductions. Sometimes the parties will begin a joint session together, other times they will begin separately at the discretion of the mediator. The physical setting will be informal and comfortable. The mediator will give an introductory statement about the roles of the participants at the mediation. In particular, the mediator will discuss his or her neutral role in the process. The mediator does not have a stake in the outcome. The mediator will confirm that, if a party has an attorney, the attorney will be the party’s legal advisor, not the mediator. In any event, the mediator will never serve as an advisor for either party. The parties’ roles are to be the ultimate decision makers. Some mediators will make comments about what they see as the issues and confirm the case data provided by the parties. Next, the mediator will define the process of the mediation. The process may include joint sessions with all parties together and/or sessions with the parties separated (called a caucus). The mediator’s statement during the introductory remarks will set out the basics for how the mediation will be conducted. These basics are what help the mediation move along smoothly and make it productive. Some examples are: conscientious listening; being respectful; keeping an open mind; and taking turns to speak. The mediator will make sure that each party has an opportunity to share his or her side of the conflict. Finally, the mediator will discuss the rule of confidentiality, as required by Florida law. More specifically, the mediation is a confidential process and the participants are not allowed to speak to the outside world about what went on at mediation. A party is not allowed to speak to a non-participant during mediation unless agreed upon by both parties. The mediator, attorneys and parties are all bound by the rule of confidentiality.
STEP 2) Statement of the Conflict by the Parties: After the mediator’s statement, the mediator will give each side the opportunity to tell his or her story uninterrupted. Most often, the person who filed the action or requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own minds, and to give the mediator more information. If there are attorneys present who make initial statements, the mediator may then ask the parties to also make a statement. The rationale behind the statement of the problem is not a search for the truth, because in most conflicts, there are several versions of the truth; it is just a way to help educate the mediation participants on all points of view.
STEP 3) Information Gathering: At the information gathering stage, the mediator will ask the parties open-ended questions to gather more information. The mediator may repeat back key things that the party said and summarize. This is done to ensure that the mediator has appropriately heard what the party has said. This also helps the mediator fully understand the issues and the needs and desires of the party, so the mediator may build a framework to discuss potential resolutions and options.
STEP 4) Problem Identification: The identification of problem areas might also be part of other segments. The mediator tries to find common goals between the parties and help the parties come to as many agreements as possible. The mediator will also figure out which issues are heavily in conflict and may prevent various creative ideas and solutions to reduce the conflict.
STEP 5) Bargaining and Generating Options: Methods for developing options may include group processes or caucuses. It may also involve developing hypothetical scenarios, creative solutions, brainstorming, proposals, counter-proposals and modifications of those. If the mediator decides to use caucuses, these sessions are also covered by the confidentiality rule. This allows a safe environment where parties can brainstorm without fear.
STEP 6) Reaching and Documenting an Agreement: If an agreement is reached on some or all of the conflicted issues, the parties will have the opportunity to document the agreement at mediation. Once the document is prepared, the parties will sign it, as will the attorneys, if applicable. Generally, the agreement is binding upon everyone at the time it is signed, even though the Court has not yet signed it.
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