Mediation: What is it and When is it Right for You?

As many would-be and current litigants know, divorce in New York can be extremely time consuming and expensive. One alternate but increasingly popular method for resolving divorce cases is mediation, a process that, when fully embraced, can save time and costs to a great extent, in addition to being less acrimonious.

Mediation is a process where each party sits down with a certified mediator who is hired to act as a neutral third party, and discuss and attempt to resolve the issues in their divorce. Unlike a judge, the mediator does not make any decisions, rather, they act as a facilitator, helping the parties clearly express their points and guiding everyone towards areas of agreement. An ideal mediator in a divorce case can often be a family law attorney who represents litigants in court, as they understand the issues at hand and are familiar with the standards of the law. Additionally, parties sometimes each would like to have their own attorney with them to ensure that their interests are fully represented in the mediation and that they understand what is being agreed to.

Mediation, once a mediator and meeting location are agreed upon, usually involves each party making a brief statement regarding what their positions are overall on the issues being discussed. Often, a mediator will ask in advance for a statement from each party containing the issues to be discussed and the party's position to expedite the process. After each party to the divorce expresses where they stand, the mediator will try to determine the areas of agreement and get those out of the way first, as it builds momentum towards compromise and enables the parties to trust each other more than they did initially. Sometimes the mediator will meet with the parties at the same time, sometimes in separate sessions, or both.

Typically, there will be extensive negotiation regarding the issues of the case, and parties are expected to keep an open mind and be willing to "trade off" for things they want. For example, you might be willing you give up Christmas Eve and Christmas day with the kids if it means you can have them with you all of Thanksgiving weekend, or your ex can have the stereo if you can have the dining room table. Once the parties have reached an agreement, it will be memorialized in writing and either the mediator or one of the parties' attorneys will draft the agreement for them to sign. If there are children, the agreement will typically contain the details of custody and visitation (also known as a parenting plan). The mediation agreement will become part of the parties' divorce papers and judgment, which will allow a court to enforce the agreement if one party doesn't abide by it in the future. However, parties are far more likely to follow the terms of a mediation agreement they contributed to as opposed to a court order they had little say in.

Some of the benefits of mediation, besides a higher compliance rate, are:

  1. It is less expensive than most court proceedings for a divorce. This is because mediation requires less time spent working towards a final outcome than multiple court appearances or a trial.
  2. It typically settles the majority of issues in the case. Mediators will try to have the parties tackle everything as opposed to litigating issues such as child custody, support, and maintenance down the line.
  3. It's confidential. Unlike public court records, the parties can require that everyone who is involved with the mediation sign a confidentiality agreement, keeping all terms and the content of all settlement discussions absolutely private.
  4. The parties can advocate for what is important to them, and have a lot more of a say in the final outcome than a decision imposed upon them by the court. This is why there is typically a higher compliance rate with mediation agreement terms than court decisions in divorce cases. There is also more control over the pace of mediation and scheduling. You and your ex are not dependent on the court calendar.
  5. Mediation is often a pathway to better communication with your ex, as you learn how to deal with the issues in your divorce with a less adversarial process. This can be a great benefit where you have children with your former spouse.

At the same time, it is important to acknowledge that mediation may not be for everyone. Some red flags that indicate mediation may not be right for you and your ex are as follows:

  1. One of the parties does not want to divorce. If this is the case, they may be able to use mediation as a way to draw out and extend the process. Additionally, they may be more stubborn or obstinate about agreeing to terms on the issues of the case because they want to punish their ex for seeking to end the marriage.
  2. There is a high level of animosity between the parties. If you and your ex can't even stand to be in the same room together, it is highly unlikely that you will calm down enough to negotiate an agreement together on major issues regarding property and any children you may have together. With respect to children, it is imperative for mediation that you trust their parenting, even if you don't agree on every issue. Otherwise, reaching a settlement is highly unlikely.
  3. You are in the dark regarding your marital assets or other important issues, or your ex has lied to you in the past. If at least one party is lacking significant financial or other information, this can lead to an unbalanced agreement. Since mediation provides for extremely limited discovery and document production, there is a lot of taking each other's word for it. If you have only limited information about finances or your spouse has previously been untruthful, it may be better to go through the regular litigation process where your attorney can require that your ex provide honest information so as to avoid your being taken advantage of.
  4. There is an imbalance of power in your relationship with your ex. If you have always been intimidated by your spouse, it is likely they will do the same thing at the negotiating table during mediation and you could end up with an unfair settlement. This is especially the case where your ex was not only intimidating, but physically and/or emotionally abusive.

As stated, mediation has a lot of benefits emotionally and financially for parties to a divorce in New York, where the court system can take far more time and incur far greater expenses for all concerned. Therefore, if you believe that you and your ex can sit down and work out an agreement with a neutral party (and possibly your respective attorneys), the mediation process may be right for you.

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