A Bartender Explains Divorce MediationBy DADvocacy™ | August 26, 2019
Basics: Litigation vs. Mediation
To understand mediation, you first need an overview of how courts work. American litigation, at its most basic level, allows two opposing parties to present their points-of-view to a judge. After sometimes lengthy (and usually expensive) motions, hearings, court orders, and numerous other proceedings, a judge delivers a final verdict and the case is ostensibly resolved. In family law, the “verdict” is usually a final order laying out each party’s status, rights, and obligations going forward.
Mediation is a more collaborative option for resolving conflict and can frequently be a way of avoiding expensive litigation. At its most basic level, mediation is a guided negotiation. The mediator helps each party identify their ideal result and then acts as a go-between and neutral advisor. The ultimate goal is to find a middle ground that meets both parties’ needs. Spouses, former spouses, and co-parents use mediation to resolve issues as simple as where the kids will spend Easter next year, and as complex as comprehensive marital settlements.
Nuts and Bolts: What to Expect During the Mediation Process
Mediation styles and techniques will differ from mediator to mediator, but the following key elements are likely to be part of any mediation, especially those involving family law issues:
Step 1: What Does Each Party Want, and Why Do They Want It?
The first step for a mediator is determining each party’s ideal result and why those results are important to them. Some parties have an extensive list of ideal outcomes. Others have one major priority and vague ideas about everything else. A common factor for most people going into family mediation is uncertainty about their options, their rights, their former partner’s rights, and their children’s rights. A mediator helps parties (separately and confidentially) determine their preferred result and why they want that particular outcome. The mediator will help parties establish where they may be willing to compromise, and assess how realistic their expectations are. An experienced family law mediator knows the typical solutions to family law disputes and uses what they learn about each party’s priorities and motivations to create options that fit their unique situation.
Step 2: Negotiation
After discussing goals and priorities with each party (again, separately and confidentially), a mediator helps each party craft an initial offer. The ideal initial offer consists of that person’s preferred solution to the identified conflict, with reasonable concessions for the other party. The ideal offer should be made in good faith. After initial offers are traded, mediations then proceed with counteroffers back and forth between parties. The parties usually stay in separate rooms, with the mediator moving from room to room. The mediator relays offers between the parties, giving neutral advice and encouraging good faith cooperation. Successful negotiations can go on for a few hours, for a few days, or anywhere in between depending on the complexity of the case and the willingness of the parties to work together.
Step 3: Agreement and Order
If negotiations succeed, the next step is drafting a written document that reflects the parties’ agreement. If the parties have attorneys, one party’s attorney usually writes an initial draft of the agreement and offers it to the other party for approval; there may be some back and forth about the wording of the agreement. Many self-represented parties use standard-form agreements provided by Florida Courts. In either case, when both parties agree on the substance and wording of their agreement, they sign it and present it to their judge. The judge will review the agreement for compliance with the law, including child support guidelines. If the judge approves the agreement (and they usually do), he or she incorporates the agreement into a final order, allowing the court to later enforce the agreement if necessary.
Why Should I Mediate?
Not only can mediation save time and money, it can also lead to better results for both parties, especially when it comes to co-parenting and other family law issues. The story below is a modern adaptation of an old analogy for mediation:
The Bartenders and the Last Orange
Imagine you have two bartenders, Marco and Alex, it’s been a busy night and they’ve just made last call. Each bartender takes one final order and then reaches for the very last orange. Marco and Alex, almost in unison, say: “Sorry buddy, I need a whole orange for my customer’s order.” Alex, who has worked at the bar longer, argues that he has seniority and should get the last orange. Marco argues that his customers are loyal regulars–and good tippers at that–so he should get the last orange. Before their argument can progress much further, a manager comes over to see what’s going on. Marco and Alex tell the manager they each need the whole orange for their last orders. The two go on, voices getting louder, with Alex stressing his seniority and Marco stressing how loyal his customers are. The manager sees that they both have good arguments and tells Marco and Alex that they’ll just have to cut the orange in half and make do. Neither Alex nor Marco is happy with this decision, but before they can complain, a server comes up, curious, and asks: “What drinks are you trying to make?” Marco replies that he needs to make a round of old-fashioneds and it’s going take the peel of an entire orange to garnish them. Alex begins to laugh, all the previous tension melting away: “Well, I need to make a round of tequila sunrises, I only need the juice.” “What do I want?” verses “Why do I want it?” The manager in our story is looking for a solution based on WHAT the bartenders want, a whole orange. With that limited understanding, the only fair solution seems like splitting the orange in half. It’s only when the server digs just a little deeper and brings out WHY the bartenders want the orange, that a perfect solution presents itself. When the subject of conflict is more complex than our story– when you bring in the real-world lives of families with traditions, work schedules, extracurricular activities, and unique parent-child relationships–the WHY can be much harder to find. But no matter how complex the issues, finding the WHY behind a conflict can reveal more options and frequently points the way to a better solution for everyone involved.
Contact DADvocacy™ Law Firm for Help
If you’re considering mediation, and you’d like to further explore your options, don’t hesitate to contact our legal team at DADvocacy™ Law Firm. Our core belief is that men should have the same opportunities and legal resources available to them as their female counterparts, especially in matters of family law. If you’re interested in learning more, fill out a contact form to get in touch with a Miami fathers’ rights attorney at our office.