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There are over one million divorces filed in this country each year, about 90,000 in Florida alone. Many of them are expensive, destructive contests that could have been avoided. Caught up in the emotions of the moment, warring spouses are pitted against each other in the only forum that our system provides for them, the courtroom. The process is designed to be confrontational. The theory is that each side attacks the position of the other and each presents its most persuasive argument to achieve a victory. The decider of the case, the judge, therefore has the benefit of the best argument for each side's position. 'While this system may be the best devised by man for deciding criminal and commercial disputes, it is a disaster for the troubled family. It elevates hostility between spouses by pitting husband against wife and mother against father. Children are impacted by prolonged exposure to angry parents over the long term of the battle. Court dockets are clogged with these emotional battles that are better resolved outside of the judicial process.
Mediation is a non-adversarial process in which you, with the assistance of an impartial mediator make decisions that affect your life. The agreement that you arrive at must be acceptable to both parties and the agreement then forms the basis for an uncontested divorce.
Though divorce mediation is not marriage counseling, the question of saving the marriage is often explored. Supervised communication between the spouses sometimes results in a desire to seek counseling to save the marriage. However, the primary objective of divorce mediation is to assist parties who have decided upon divorce get through the process in a less confrontational setting.
Mediation can take place during the divorce suit, before the trial of the case. When it occurs during the divorce process it is referred to as "court ordered" or "court connected" mediation. However, by that time, both parties will probably have paid attorney fees and started the case in the hostile environment of the adversarial process. Couples facing divorce are urged to consider getting the assistance of a family mediator before retaining opposing divorce attorneys.
The mediator is a neutral party who cannot order either of you to do anything.
The agreement that is reached must be acceptable to both of you. He or she will
help to defuse emotions, and guide both of you through the web of difficult
issues. Through extensive training and experience mediators can often suggest
creative solutions to problems that the parties may have considered insoluble.
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Mediators have the power to render a full pre-suit mediation service to couples. Florida Ethics Opinion 86-8 provides that an attorney/mediator may meet with a husband and wife and then prepare a marital settlement agreement for both parties without the ethical dilemma of a conflict of interest. Similarly, non-attorney Supreme Court certified family mediators have the ability to render a full service to couples facing divorce. By not using these services the public is deprived of the talents of professionals who are well trained to assist couples in this most trying experience of their lives.
Mediators deal with every issue involved in the dissolution of a marriage: distribution of property and debts, child custody and support issues, spousal support, and assistance in virtually every subject necessary to lead to a complete agreement and uncontested divorce. Instead of airing these personal and often painful subjects in a public arena (the courtroom), you deal with them in the privacy and confidential setting of the mediator’s office. The costs are significantly less than battling it out with opposing divorce attorneys. Most importantly, the process helps the parties avoid destructive battles, which impact upon children of the marriage as well as family and friends. It enables you to get on with your life.
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Not All Mediators Are Attorneys. Pre-suit mediation does not require that your mediator be an attorney. Though many divorce attorneys are now engaging in this field, trained mediators come from mental health, accounting and other professional backgrounds. They receive special training in skills necessary to help parties avoid contested divorces. Of course, courtroom battles remain the exclusive domain of the divorce lawyer, and if you cannot reach agreement with a mediator, the divorce lawyer is there to help you.
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Court ordered mediation has proven to be a remarkable success. However, the courthouse is so overwhelmed by these matrimonial cases that the success of court ordered mediation brings only marginal relief to crowded dockets. The parties have already been positioned as adversaries and settlements tend to be based upon compromise in legal positions rather than constructive solutions which both parties can embrace. Pre-suit mediation offers a true alternative. The public is often unaware of this alternative where the mediation begins before the court battle ever begins.
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In a State that leads the nation in the field of mediation, pre-suit divorce mediation in Florida is still in its infancy. Mediators try to provide couples with a process in which they retain their dignity and self respect before they enter into a war that is mutually destructive and devastating for their children.
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****The foregoing is not intended as an exhaustive review of divorce presuit mediation or dissolution of marriage law in Florida. This information is not to be regarded as legal opinion applicable to all circumstances. Each factual scenario is different and requires unique and individual advice. The information provided herein should not be relied upon and any person with inquiry or concern should consult an attorney.
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