While both mediation and arbitration are alternative dispute resolution processes, mediation and arbitration are not the same thing. Mediation is more commonly used in family law cases than arbitration.
Mediation is an informal, confidential, and nonadversarial process where a mediator tries to encourage and facilitate resolution of a dispute between parties. A mediator is a neutral, impartial third party who has no authority to make decisions for the parties. The mediator’s role is to use his or her negotiation skills to generate movement by the parties towards compromise. Some advantages to mediation are that it is less expensive and more expeditious than litigation, it provides the parties the opportunity to settle their case on their own terms, and it permits the parties to be flexible and creative in formulating solutions. Mediation provides the parties control over the outcome of their case (and lives) as opposed to a judge who may not fully understand the parties’ circumstances and/or special needs. Most circuits in Florida require parties to mediate prior to going to trial. This is both beneficial to the parties and to the overloaded court system.
Mediators do not have to be attorneys; however it is strongly suggested that one use a mediator that is knowledgeable and experienced in family and matrimonial law. There are Florida Supreme Court certified family law mediators who have been trained and meet the Supreme Court’s stringent qualifications. To find a local certified family law mediator, go to www.flcourts.org and click the general public drop down menu to family law mediator search.
Arbitration is an adversarial process similar to a trial but generally less formal than trial. The arbitrator sits as a judge or decision maker of the issues. Some advantages to using arbitration in family law cases are speed, simplification, the informality, finality of the proceedings, and privacy. The disadvantages of arbitration are: it is more expensive; the parties give up their right of appeal; and arbitrators are not bound by the same rules and regulations as judges are in rendering their decisions.
Do both myself and my spouse need to be in the same room if we go the mediation route for our divorce?
There is no requirement that both parties must sit in the same room during mediation. Most mediators start the mediation process with both parties and their attorneys in the same room. While everyone is in the same room, generally the mediator will explain the mediation process and the mediator’s role in the process. Thereafter, generally the parties will go to separate rooms for the rest of the mediation where the mediator gathers information on the parties and the issues, develops and discusses strategy. The mediator will go back and forth to each party’s room in an effort to bring the parties towards compromise. If you do not wish to start mediation in the same room, advise the mediator ahead of time so he or she can prepare accordingly.
What happens after we reach an agreement in mediation?
Once an agreement is reached, the attorneys will reduce the agreement to writing. The written agreement is then reviewed by the attorneys and the parties. After an agreement is fully executed by both parties, it should be filed with the court and ratified by a court order or final judgment.