COVID-19 has wreaked havoc with the judicial dockets, schedules and the entire court system. Mediation has proven to be an especially valuable method of conflict resolution during these trying times. Pandemic restrictions have led to an increase in the number of mediations in Florida and it is expected that online mediations will likely continue long after the pandemic restrictions have been lifted. It is crucial to seek accurate information about how the mediation process works. There are many different mediation misconceptions that are simply not true. While mediation continues to fulfill its promise of being the “wave of the future,” there are still a number of misplaced concerns that cause the process to be underutilized.
1. Myth: Mediation Does not Work for High Conflict Cases.
Reality: Mediation is Appropriate for High Conflict Cases.
One of the most common misconceptions about divorce mediation it that it is only suitable for couples that get along. While it may be true that the two people are too emotional to sit down together alone, in mediation they work with their mediator, a trained professional and neutral third party, who has experience and training to help them focus on the issues at hand and to work together to resolve them. The mediator has many tools available to assist when emotions run high, such as caucusing by meeting with the parties in separate rooms or using an online platform until emotions have a chance to settle down. The mediator is skilled at helping the people focus on the issues at hand and the future rather than the things that happened in the past that brought them to divorce in the first place.
2. Myth: Mediation Is Cheap.
Reality: Mediation is More Cost Effective than Ongoing Litigation.
Cost is frequently one of the most pressing concerns for individuals who are in the midst of pursuing a divorce. Opting for the cheapest available professional may not put you in the best position for a secure financial future. You should seriously consider the qualifications of the expert that you and your spouse choose, as this person will come up with your proposed settlement. Overall, the cost of hiring a mediator could be just a few thousand dollars, in comparison to the tens of thousands that are often associated with litigation.
3. Myth: A Judge will Hear the Truth and Justice will Prevail.
Reality: There is No Guarantee the Truth Will Lead to Justice. The Realities and Complexities of court can cloud reality and foster unrealistic expectations.
In the legal arena, the truth does not exist in and of itself. It must be proven. The truth is whatever the judge or jury says it is—not what one person knows it to be. For clients, that can be a hard reality to grasp. If there is no incontrovertible proof, such as a memo or a video, the situation can become a “he said/she said” situation, which means it’s anyone’s guess as to how the “truth” will be determined by a judge or jury.
4. Myth: I hired an Attorney to Litigate, not Mediate.
Reality: Most litigated cases in Florida will settle in mediation.
Contrary to popular belief, attorneys generally support alternative dispute resolution, like mediation. Attorneys understand that most couples don’t have the money to cover the costs of a trial and a continued contested divorce and encourage clients to attend mediation with an open mind and in good faith.
5. Myth: Mediation is a Waste of Time.
Reality: Even if no agreement cases is reached in mediation, it is rarely a waste of time.
In my opinion, mediation is rarely a waste of time. Mediation brings parties to agreement on many issues which the parties (or their attorneys) never thought possible. There is often an answer to the issues that can satisfy both parties leaving the decisions of the divorce to them and not to the Court. Even if there is not a complete agreement, perhaps mediation is a way to resolve some of the issues in order for the parties to focus the litigation on the issues that cannot be solved. At a minimum, the mediation permits conversation about the issues and an understanding of the other party’s point of view. Even if the parties do not agree, it could prompt thought about how to resolve the issues or about what resolutions to rule out entirely.
6. Myth: Mediation communication can be used in court.
Reality: Mediation communication is confidential.
Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality.
7. Myth: The Mediator will Tell the Parties What to Do
Reality: Decisions are made by the parties, not the Mediator.
In mediation, the mediator’s role is not decision maker, but is to act as a neutral support system for both parties equally. The mediator helps the couple identify all the issues that they need to resolve around their divorce, gives them information and education about the law and other facts around those issues, and facilitates their discussion of those issues so that the parties themselves can decide what is the best course of action for them.
8. Myth: Complex Cases can only be resolved in court. Mediation is for simple, low end cases.
Reality: It is often better to resolve complex, high end cases in mediation.
Anything that can be decided by a judge can be resolved through mediation. Whether you have child custody issues that are difficult to agree upon or complex finances to split, mediation is still an option. This is also where it would be useful to have a lawyer present, since they can make suggestions based on the intricacies of the law. While it may seem intimidating, mediators and attorneys are very good at simplifying complex legal jargon down to a level that the average person can understand. Do not feel that the complicated legal aspects will disadvantage you and that the only option is to let attorneys hash it out in court.
9. Myth: Words Mean Nothing.
Reality: As a mediator I have seen the power of the apology many times, first hand.
An apology can be magical, cleansing, and healing. Practicing the 12-Step directive to “make a list of all persons we have harmed, become willing to make amends to them all, and make direct amends wherever possible” may be one of the best life practices you can incorporate. In fact, adopting this philosophy can drastically improve relationships. A genuine apology can be very powerful and go a long way towards repairing a relationship. Even if you don’t want reconciliation, an apology can bring closure and internal peace as well as reduce the possibility of negative repercussions in the future.
10. Myth: All Mediators are the Same.
Reality: Mediators have different skill sets, and may or may not be equipped to settle your case.
Not all mediators are created equal. Some are more experienced, some less. Some are brash, and some are restrained. Some will try and lean on you to get a deal, and others will just sit idly by and watch the parties die of old age before a settlement is reached. Importantly – some will be persuasive to your client, and the other side’s client, and to their counsel (or yours) – and others won’t. Don’t pick someone in the right price bracket – pick the right person – after all, you know your client and you know the other parties – get the personality, seniority/experience, and persuasiveness level right and you’re on the right track.
When it’s time for settlement, you and your clients need a mediator who is knowledgeable about the issues in divorce, understands the financials, and gets the job done. Whether it is divorce, alimony, custody or post-judgment issues, allow Deborah Beylus of South Florida Mediation Services to mediate the case to help you negotiate what matters to you and your clients in a balanced manner. 561-789-0710. www.southfloridamediationservices.com.