Divorce Mediation Defined

By Staff Writer

With increasing frequency, people are resorting to matrimonial mediation as a means of amicably resolving their divorce and related issues. Mediation is an alternative to litigation that can be less expensive and a welcome alternative to our contentious litigation system.

Some states require that spouses mediate or arbitrate their Divorce or Separation issues. New York does not have that requirement. Most people involved in a Divorce do not trust their spouse, or they are consumed with overwhelming emotional issues that motivate them to hire an attorney to protect their interests. Attorneys usually engage in negotiation or litigation. That is their role in the process. Many attorneys will not readily recommend mediation or arbitration. You need to understand early on that your attorney makes a living because you are involved in a battle. It is not likely that your attorney will ask you to take your business elsewhere and find a good mediator or arbitrator to do what the attorney was going to do. That being said, not every case should be sent to a mediator or arbitrator.

If you are involved in an abusive situation, you need the protections of the Court system. If you and your spouse are incapable of speaking civilly to each other and discussing your Divorce or Separation issues, mediation is not likely to be successful. If you or your spouse intend to contest grounds for Divorce for economic or other reasons, mediation and arbitration are not an option. If you or your spouse are unwilling to compromise on one or more of your issues, mediation will not work for you either.

Mediation works when two people want to resolve their marital issues without the tremendous expense of litigation and they believe that they can work together with one mediator instead of with two attorneys. Under those circumstances, the overall cost of the process will often be substantially reduced and the parties will be the authors of their own settlement. That fact alone usually results in settlements that are lasting and effective. Mediation also results in a Separation or Divorce that has a far less devastating effect on children than litigation. That fact often motivates otherwise warring couples to consider the mediation process.

What is mediation? It is a process where by the parties work with one person who facilitates or helps them reach an agreement. A mediator does not make decisions for the parties and a mediator does not tell the parties what the end result should be. Rather, a mediator outlines the issues for the parties and helps them to arrive at their own decisions on those issues. The mediator does that by asking questions and focusing the parties on solutions instead of arguments. The parties might disagree on some of those issues. However, they have usually agreed on mediation because they are willing to compromise and because they want to enter into an agreement instead of battling their issues out with attorneys and Judges. Often, the parties understand the devastating effect that litigation and arguments will have on their children and that motivation alone compels them into a compromised or mediated agreement.

The mediation process can take anywhere from a couple of weeks to a year. The length of the process will depend upon the difficulty of the issues presented and the ability of the parties to reach agreements. It will also depend on how well informed each of the parties is about their legal rights and the options available to them. When the parties have completed the mediation process, they will receive a Memorandum of Agreement from their mediator. That Agreement is not binding. If must still be reduced to a written legal Separation Agreement to be enforceable in New York State. A Memorandum of Agreement might be ten or fewer pages . A Separation Agreement is usually at least twenty pages . The reason for the difference is that the Separation Agreement will contain all of the legal language necessary to turn the Memorandum of Agreement into a valid and enforceable Separation Agreement.

Hiring an attorney who is familiar with and who works with the mediation process is critical when it comes time to translate the Memorandum of Agreement to a Separation Agreement. If the process is going to fall apart, it will often occur at that time. If an attorney is hired by one of the parties who does not respect or adhere to the principles of mediation, that attorney might attempt to convince his or her client to disregard the mediated agreement and either begin negotiating again or worse yet litigating.

A mediator can be an attorney, but a mediator does not have to be an attorney. There is no requirement that you select one type of mediator over another. That is a totally personal decision. You should, however, select a mediator that is trained in mediation. You should ask each mediator that you interview what their credentials and training are. Ask if they are certified as mediators. Anyone can hang out a shingle and call themselves a mediator. Hiring an untrained or uncertified mediator is no different than hiring an electrician to do your plumbing. It is your choice if you want to do so, but the end result will be effected.

In our experience, the mediation process works best when the parties each also have an independent attorney that they have retained to work through the mediation process with them. Having each of the parties retain independent attorneys can increase their costs. However, it will also result in a mediated agreement that both parties have negotiated after being fully informed of their legal rights. If the parties rely on the mediator to advise them on their legal rights, each of the parties will get a watered down version of the law. The law is not black and white and there are many issues that could be decided more than one way by a Judge. If that is the case, how can a mediator advise both parties on the law?

Not all attorneys work well with mediators. If you are interested in mediation and you have an attorney, ask your attorney for a referral to a mediator. Your attorney’s response to your request might be very enlightening. If your attorney is able to give you the names of one or two mediators and give you examples of successfully mediated Divorces or Separations, your attorney probably has experience in successfully working with mediators. If your attorney puts down the mediation process, your attorney is probably more focused on earning money than exploring all of the possible options for resolving your case to ensure your interests are served.

You can and should also ask the mediators that you meet with for referrals for attorneys. There are attorneys in every geographic area who work regularly with mediators and who are capable of ensuring that the mediation process works. There are other attorneys in every area that will do everything that they can to convince their client that they should not adhere to the mediated agreement. Why? It is certainly possible that a mediated agreement is not fair. It is also very possible that the attorney will earn a larger fee in pushing the case to litigation than the attorney will earn merely by assisting the mediation process.