March 2018

LAW
Presuit Divorce Mediation:
by H. Mark Purdy, Esq.
The benefits and how it works
Only twice was I financially
ruined: Once when I lost a
lawsuit, and once when I won a
lawsuit.
Voltaire (1694-1778)
Whatever you do, keep out of
court. For it’s being ground to bits
In a slow mill; it’s being roasted
at a slow fire; it’s being stung to
death by single bees;
It’s being drowned by drops; it’s
going mad by grains.
Charles Dickens,
Bleak House (1852)
The sharp wit of Voltaire and the flowing
prose of Dickens articulate a present day
truth — that it is very wise to consider
alternatives to litigation to resolve
conflicts. In recent years many forms
of Alternative Dispute Resolution (ADR)
have been utilized, but none more widely
accepted than mediation. In no other
circumstances is the need for “a better
way” truer than when faced with the
potentially devastating emotional and
financial consequences of divorce.
This article will provide an explanation of
the rapidly growing form of ADR known
as presuit, pro se (without lawyers)
divorce mediation. It is a simple, very
cost effective, private process in which
the parties themselves come to their own
settlement.
We start by understanding what
mediation is and the role of a mediator.
Mediation is a process in which the
parties to a dispute utilize the services of
a neutral third party - the mediator - to
encourage and facilitate the resolution
of disputes. It is designed to be the
opposite of litigation, which involves
rules of law and procedure, extensive
formal discovery such as depositions,
court imposed deadlines, multiple court
appearances, the stress and uncertainty
of surrendering the ultimate decision
making authority to someone else, as
well as the possibility of a post-trial
appeal. In short, in litigation each party
seeks to “win the lawsuit” by attaining
complete “victory” at the expense of the
other party. Mediation, on the other hand,
is informal, nonadversarial, private, and
confidential. The issues to be resolved
are treated as mutual problems to be
solved by the parties, to their mutual
satisfaction.
The role of the mediator is critical and
parties facing divorce should carefully
select an experienced mediator who
is Florida Supreme Court Certified in
Family Mediation. First and foremost,
the mediator is bound by strict ethical
standards of neutrality and impartiality.
The mediator does not serve as legal
counsel for either or both of the parties.
The mediator does have a very active
and essential role in the process and
is often referred to as a “guide” to the
parties. The mediator is ethically allowed
to provide information that the mediator
is qualified by training or experience to
provide. In divorce mediations there are
multiple, often complex issues to be
resolved, such as property distribution,
alimony, and children’s issues. Therefore,
the mediator creates an agenda so that
issues are discussed in a logical order
and within realistic parameters. Assisted
by the mediator, the parties develop a
better understanding of the issues and
their options. The mediator can suggest
alternative solutions that the parties
might not have considered. The mediator
always encourages and facilitates
communications between the parties and
seeks to remove barriers due to lack of
communication.
Full settlements are usually reached
after a few mediation sessions. At that
point, the mediator assists the parties
in completing a written settlement
agreement as well as all other paperwork
necessary to obtain the Final Judgment
of Dissolution of Marriage. P
H. Mark Purdy, Esq., is a former Broward
County Court Judge and Circuit Judge.
He is a Florida Supreme Court Certified
Family Mediator and a principal in
Mediar, Inc.
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MARCH 2018