Many people mistakenly believe that a divorce automatically means a court trial. The reality is that a large portion of litigated divorces never make it to court and are settled via mediation. Needless to say it’s important to understand how mediation works and its role in divorces cases. With this in mind, I discussed the topic with Luis Pardon, a Miami-based marital and family law attorney and mediator.
DM: A large percentage of divorce cases settle via mediation, why is mediation so prevalent?
PADRON: Under the Family Law Rules of Procedure, courts have the power in a divorce case to refer parties to mandatory mediation and the vast majority of Family Law courts highly prefer and require parties to attend mediation before the final hearing in their case. When it comes to financial issues, such as equitable distribution, most parties realize that there only exists so many assets to go around, and many of those assets will be squandered if the case goes to trial. Therefore, because mediation is often mandatory and because parties realize that they often will lose more then they gain by going to trial, most divorce cases settle at mediation.
DM: When it comes to divorce, what are the different forms of mediation?
PADRON: Although there are a multitude of divorce mediation types, the most typical form is where each party and their attorney sit in one room and the other party and their attorney in a separate room. The certified family law mediator goes back and forth between the rooms and discusses the other side’s positions in an attempt to settle the case. Sometimes, the mediator will have the parties and their representatives all in the same room; however, this usually only works where the parties are not particularly contentious with each other. Other types of mediations exist, such as where parties work collaboratively with joint accountants and therapists over a series of meetings in attempt to resolve the issues.
DM: When is mediation a good alternative for divorcing couples?
PADRON: Mediation is always a good alternative for divorcing couples, unless there are domestic violence issues (between the parties themselves or perhaps between a party and a child), or when one party takes such an extreme and stoic position that makes mediation essentially pointless.
DM: What are the pros and cons of mediation when compared to a trial?
PADRON: The pros of mediation are that the parties can reach an agreement right away where both sides are relatively satisfied (although rarely is either side completely satisfied) and the substantive litigation essentially ends. The cons of mediation are, as indicated, that either side may feel they could have obtained a better result at trial. When the case does not settle at mediation and proceeds to trial, lawyers often say that the parties are “rolling the dice.” Trial is always a gamble, and no one really knows what the final outcome will be.
DM: What are some helpful mediation preparation tips?
PADRON: I recommend preparing as though you are going to trial. Many family law attorneys do not adequately prepare for mediation and end up forgoing their client’s rights to valuable assets or terms to which they would have been entitled. Lawyers must thoroughly review all discovery produced by the other side well in advance and determine what other information is needed to settle. It is often helpful to value all the material assets (such as by obtaining appraisals of real property or valuing businesses) prior to the mediation.
Carlos Blanco is the founder of The Big Kaboom www.thebigkaboom.com to provide answers, referrals and personal support to people considering divorce, moving forward with divorce or recently divorced. Contact him at 305- 908-1171 or email to cblanco@thebigkaboom.com.
