New York Divorce

Would I prefer Mediation for my Divorce?

by Rachel Fishman Green, Esq.

Mediation is a process where you and your spouse decide to sit down together, with a knowledgeable and neutral person, who will help you to negotiate the terms of your divorce.

The Benefits of Mediation

Mediation is quicker, cheaper and more peaceful. Where there are children involved, it is less traumatic for them when the divorce is resolved quickly, and the conflict between the parents minimized.

By framing each issue in terms of win/lose, the adversarial system encourages people to become entrenched in their positions. This makes the case harder to settle. For example, on the issue of alimony (which in NY is called maintenance) it is hard to predict what a judge will do. The law allows a lot of discretion.

For example, I had a case where the wife’s lawyer said, "You should not settle for less than $5,000 a month alimony, and the husband’s lawyer said, "You will not have to pay more than $2,000 a month in alimony." Because the lawyers only hear one side of the case, they are honestly giving their opinion, but the opinions differ greatly and make it difficult to find middle ground.

In mediation, we discussed the factors that the statute considers important in determining maintenance – such as the length of the marriage, whether one person stopped working to take care of children or contribute to the other spouse’s business, the relative earning abilities of the spouses, the degrees held by the spouses and the work history – and the arguments that each person’s lawyer would make for them. Then we worked together to discuss and decide what this couple thought would be fair for that family. That family agreed to have decreasing alimony which started at $5,000 a month and decreased every 6 months for a few years. This allowed the lower earning spouse to have some security while working toward becoming self-sufficient.

Creative Thinking

The brainstorming phase of mediation allows parties to think creatively about how to resolve problems. A couple was splitting their house 40-60 (rather than 50-50) because one person had put in a lot of sweat equity during the house renovation. They had a disagreement whether to divide the mortgage and costs equally, or to divide those 40-60 also. One of them proposed, "The costs incurred during the marriage, let’s split equally. The costs incurred because of the divorce should be split in the proportions of the divorce settlement." I could not have come up with a more fair way to divide those costs myself. And it is unlikely that a judge would have the time to pay attention to such details.

Improved Communication

Mediation can give even divorcing parties a new and better understanding of each other. A wife insisted that she take the tax deduction every year for their 2 children, even though she earned ½ of what her husband earned, and would therefore be paying less of the children's expenses. The husband argued that this arrangement was unfair to him. With two children, they could have easily split the tax deductions -- but I asked her why she didn't want to divide the deductions.

She answered, "I feel terribly betrayed by this man. He promised to stay with me for the rest of his life and now he has changed his mind. He is promising to take care of his children in the future, but I fear that he will again change his mind. If he stands by his promise to provide for and care for the children, in 2 or 3 years I would be willing to give him some of the tax deductions."

The husband heard this from his wife and said, "OK, that's fine with me. She can have the deductions." I said, "Do you want to put into the agreement that you will reconsider this a couple of years down the road?" He said, "No. I trust her." The wife's eyes widened in surprise at this acknowledgement by the husband.

Cost

The cost of mediated divorces in my practice averages between $2000 and $5000. The variation depends on whether the couple is able to work out a lot themselves, or if the situation is very simple (short marriage, few assets, no children).  It can cost more if the situation is very complicated or if the couple is having trouble agreeing. Adversarial divorces can cost a lot more money -- as much as $300,000 in attorneys fees (in New York) if the case goes to trial, and $50-100,000 even for a middle class couple that has attorneys negotiate their divorces. I know of couples who lost their house, or have a lien on it, because of legal fees during a divorce. I worked with a couple who had had lawyers negotiating for them for 1 ½ years, and they had already each spent $70,000 in legal fees! Unless you are very wealthy, or are so angry that you want to use the divorce process to destroy your spouse (and yourself), you may not want to enter such a process.

There is a difference in the way mediation and litigation resolve conflicts -- and that's what really keeps costs down.  Where there is impasse on something sticky -- whether one person will get alimony, for example, or what is the fairest way to divide up the marital portion of a business -- people who mediate attempt to discuss things, and if unable to resolve it, keep discussing things for as long as it takes. I find that even with disputes that seem unsolvable and intractable, solutions emerge when new understanding takes place. We come back for another mediation session, feelings and perspectives have shifted, and the impasse is gone. Adversarial attorneys, in contrast, will continue to build argument upon argument, writing letters, setting up negotiation sessions, and even making motions in court.  By engaging in all of this activity, they encourage the couple to cement their positions rather than to try to find compromises to resolve disputes -- and they also run up fees. 

Do Mediated Divorces Reflect the Law?

During the course of mediation, you will get information about the law, but you can consider the law as one option for your family. For example, the state of NY considers an advanced degree earned by one spouse to be the marital property of both. I worked with a couple where the husband, Ethan, had gone to law school during the marriage, but both agreed that Ethan should not pay Celia for the value of his law degree. She also had an advanced degree, which she had completed before the couple had married, but when they were living together. In addition, Celia earned more money than Ethan did. Because they were mediating their divorce, they were able to shape an agreement that matched their personal standards of fairness.

Mediation can also provide benefits that the legal system can’t. In another case Alison, the wife, knew that her husband Andrew had more money that he would admit, after the legal battle began. Alison knew (and her attorney informed her that) it was likely that, after an extended battle in court, she might achieve a $1 million settlement. But she wanted to leave the marriage quickly. Their children were already suffering living with parents in high conflict. She wanted them to begin to develop new coping strategies so they could begin the healing process from the divorce. She also felt that, throughout the marriage, the husband had put more time and energy into his business than into the family, which was part of the reason the marriage failed. She decided to accept a $500,000 settlement to achieve her goals of resolving the divorce quickly, letting her husband know, in a concrete way, that she did not share his belief that money is the most important thing in life, and to get quickly to the point where she could focus on shaping her and her children’s future life.

At first blush it appears that she accepted one-half of what she would have gotten in court. But we must subtract out the substantial legal fees which would surely have been incurred – perhaps $75,000 (and that may be a modest estimate) for the wife’s fees, as well as at least a 2-year wait for the money. The husband in this case was a sophisticated fighter, and had the money to hire a top-notch attorney, and the wife was aware of the kind of fight which would ensue if she had gone to court. A more accurate estimate is that she accepted 2/3 of the settlement in order to have it resolved immediately. Mediation allows people to act on non-economic motivations, such as this wife wanted to do, including the desire to reject the husband’s money!

Who Should Not Mediate?

If there is a chance that your spouse has a big Swiss bank account (or other hidden assets) which he or she will not openly reveal to you, you would be better off working with traditional attorneys. Mediation requires full and complete sharing of information in order to have an even playing field and the ability to fully participate in negotiation.

In order to mediate, you have to be able to sit in the room together to negotiate. I can help improve your communication, but you both have to be able to speak and discuss what’s going on, and express your needs and feelings. Mediation generally won’t work where there’s been a history of violence between spouses, or where there is extreme emotional intimidation. For example, I worked on a case where the wife seemed like a different person when her husband was in the room. Without him, she was chatty and charming, but when he entered the room, color drained from her face and she became monosyllabic. This couple couldn’t mediate.

Most couples who come to mediation already know they want a divorce. I’m not a marriage counselor. If one person doesn’t want the divorce, we can’t really begin the mediation, because both have to be able to focus on shaping their future – and if they haven’t accepted that the future is coming, they can’t realistically shape it. During my 8 years as a mediator, only two couples with whom I have worked ended up staying together.

For more information, see my website: www.mediate2resolution.com

You can also contact the New York State Council on Divorce Mediation (1-800-894-2646) and the Family and Divorce Mediation Council of Greater New York (212-978-8590).

Rachel Fishman Green, Esq. is an attorney with eight years of experience as a divorce mediator, and the director of ReSolutions-Mediation/Legal Services in Park Slope, Brooklyn. She has helped divorcing couples resolve conflicts concerning all aspects of divorce, including division of homes, time with the children, dividing small businesses, fair distribution of pension assets, child support, division of health and child care expenses for children, tax aspects of divorce, how to bring new girlfriends/ boyfriends into children's lives. 

Rachel can be reached at
MediatorRachel@aol.com
Rachel@mediate2resolution.com
or at 718-965-9236.