The mediation process can be as creative as the parties and the mediator wish to do.  Mediation can be provided both with counsel and without counsel.  Such mediation can be conducted in both the family and civil areas.  In addition, mediation proves itself most effective before the parties go to court and sometimes before the parties even hire attorneys.

A significant portion of Mr. Rubin's practice is the working with parties who have not yet entered the court arena nor hired attorneys. 

WHEN IS MEDIATION INDICATED?

The family courts now refer almost all divorces to mediation prior to the time of trial.  Therefore, if mediation is to occur at some point, it is best that it happen as early as possible.  Let's try and distinguish between the two typical situations in which a divocing couple use mediation.

• The first is when the couple have made the decision to divorce but have not as yet had extensive consultations with attorneys.  At this point they may still have a desire to resolve the relevant issues without acrimony and in a fair manner.  In our opinion this is the best time to refer and individual or a couple to the mediation process.
• The second situation occurs when the clients are already in the legal process, with each party having retained a separate attorney, and some stage of negotiation is in process.  At this point emotions will inevitably have begun to escalate and significant damage has often already occurred to the husband, wife and the children.

THE PRIVATE MEDIATION PROCESS AT WORK IN A TYPICAL DIVORCE

In the private mediation situation, the parties call and make an appointment for the initial orientation session.  This is scheduled to last for one or two hours.  At that time, the mediation process is described in detail and the parties are encouraged to ask any and all questions, allowing them to fully understand everything involved.  This will help them decide if they wish to use mediation to resolve their divorce disputes.  The mediator explores the issues of the case raised by the parties.  Also discussed are such issues as confidentiality, the interface with the legal system, full disclosure, fees, appointments, expectations and the maintenance of neutrality by the mediator.  The cost of mediation is divided equally between the parties to maintain equal investment and responsibility.

If the parties are satisfied and wish to use mediation, and the mediator has determined that they are suitable for mediation, the process may either begin immeidately, or a subsequent appointment is scheduled.  Assignments may be given at the first meeting, i.e. to develop an inventory of their assets, liabilities, income and expenses; to prepare a detailed budget describing the monetary needs of each member of the family.  After a financial picture of the family has emerged, negotiations proceed and decisions are made by the parties concerning the division of property and the support of the children, etc.  Specific sessions are devoted to discussions concering the children, such as where they will live, which parent will be designated the residential parent, how they will spend time with each parent, and any special needs or problems.

Ultimately, a Memorandum of Understanding is prepared by the mediator for the parties to have an opportunity to review with their independant legal counsel.  This is the finished product of the mediation process but, in private mediation, it is not signed by the parties and is not yet a legally binding document.  After the lawyers have reviewed the Memorandum and have given their input one of them will draft a property settlement agreement.  The matter will then go to court as an uncontested divorce.  The mediation process therefore avoids costly and protracted legal negotiations.

COURT-REFERRED MEDIATIONS

Cour-referred medation is, as its name implies, mediation that is orderd to be done by the Court.  Generally speaking, the judge will order the parties to mediation.  If the parties can agree they choose their own mediator, or their attorneys may assist in the selection.  The alternative is for the court to select a mediator through a blind rotation system.  Almost every judge in Dade County now refers cases to mediation before the matter can either be set for trial date, or go to trial.  As one might suspect, the success rate is greater in early and voluntary mediation than it is where the court has ordered the parties to mediation.