Q. What is Divorce Mediation?
A. Divorce mediation is a voluntary, cooperative settlement process in which a neutral professional helps you make practical, informed decisions to resolve your differences. It is used frequently and successfully by separating and divorcing couples who want to plan their futures rationally, in an atmosphere of cooperation and mutual respect. With the guidance of a trained mediator, you work together through a series of orderly steps to create a fair and reasonable agreement. The mediator helps you define the issues to be settled, gather and analyze the necessary information, and communicate effectively.
After evaluating your options, you–and only you–make the decisions that become the agreement. The goal of a successful mediation is to reach an agreement that is custom-made for your family, your finances, and your future.
Q. Do I need an attorney?
A. The question is, do you want an attorney? Some parties elect to retain an attorney to consult with, during the divorce mediation process; usually between mediation sessions. The parties may use the attorney to ask questions, bounce ideas off of, and clarify the legal issues. At the end of the mediation process, and prior to signing a Separation Agreement, you may have an attorney review the document and provide feedback. Ultimately, the choice is yours: some people retain an attorney, some do not.
Q: Can you serve as my attorney and my mediator?
A: No. If I serve as a mediator, I am a neutral professional. Although I am an attorney, I am not representing either one of you as an attorney, but serving as a neutral facilitator to help you reach an agreement. Because I am also an attorney, however, I will be able to prepare and file your Separation Agreement for you, if you so desire, without you having to hire an outside attorney to do so.
Q. Do my spouse and i have to agree on everything to do mediation?
A. No. The only requirement for a successful mediation is an honest desire to discuss separation issues. Most times, the couple does not agree on all issues to be resolved. As long as you are open to having the discussion, and have some measure of trust of your spouse, you can successfully mediate.
Q. What about the children, custody and visitation?
A. In divorce mediation, these issues are usually referred to as “parenting arrangements” which is a more cooperative phrase; terms such as “custody” and “visitation” can become fighting words and the children become pawns or victims of the battle between the parents. In litigation, where parents can not agree, usually one parent is determined to be the most fit and is granted custody and the other parent is granted visitation; usually alternate weekends and one or two nights during the week. In mediation, parents work to create a parenting arrangement which is responsive to the work demands of each parent and the needs and activities of the children. Often in mediation, through the good will which is generated, parents do not even set a strict schedule; instead, they agree each week to compare their schedules and the obligations of the children and decide which parent will pick the children up after school, who will get them to lessons or sports, who will provide dinner and who will help them with homework. Quite honestly, who can say what their schedule is for more than a few days or a week at a time? In this way, both parents and the children benefit with quality time spent with each other.
Q. What does mediation cost?
A. The average total cost of mediation for both parties will vary depending upon the level of agreement or disagreement between the parties, the complexity of the issues involved, and how long the agreement takes to complete. The average cost of a litigated divorce in New York is almost always going to be several times higher than the cost of a mediated divorce. The “emotional costs” of a litigated divorce can also be staggering, whereas mediation strives to make the process as constructive as possible. Mediation seeks to reduce the stress involved in a divorce, not exacerbate it (as too often happens in the adversarial system).
Q. What happens once the mediation process is completed?
A. The couple has at least two choices: 1) get divorced right away by one party signing an affidavit that the relationship has “irretrievably broken down for a period of six months or more” (commonly referred to as the “no fault” option), or 2) seek a legal separation and wait to finalize the divorce until a future date. In either case, an attorney will need to draft the Separation Agreement, which can then be presented to the court with the divorce papers.
Q. Will mediation repair our marriage and bring us back together?
A. Mediation is not counseling. Mediation may help the couple to improve their communication, listening and problem-solving skills, but mediation is not a substitute for marital counseling. Issues of blame, fault and guilt must be referred to a counselor which is cheaper and more effective than trying to use the litigation process to “punish” the other spouse.
Q. My spouse refuses to try mediation, what can I do?
A. Mediation is voluntary; the process is not binding and either party may stop mediation at any point short of signing the Separation Agreement, which once signed is a valid and binding contract. Often it is effective for one spouse to offer to pay for one mediation session, to allow the other spouse to ask questions and see for themselves if they wish to proceed rather than resort to litigation.
Q. We already hired attorneys and started litigation, what can we do?
A. It is always possible to call “time out” and request a general extension of time for settlement discussions to take place. The parties may participate in mediation, and retain their attorneys to consult with, review documents prior to signing the same, and to finish the divorce once the mediation process is completed.
Q. Is a mediated agreement enforceable?
A. Once the parties have shared all relevant financial and related documents, reached agreement and signed a Separation Agreement, this forms a contract which is valid and enforceable as such. Usually, parties who complete mediation have created an agreement which truly represents their decisions on the issues, so enforcement is not a problem. People respect and honor agreements which are made voluntarily. In litigation, it is not uncommon after a lengthy divorce for parties to continue fighting by each bringing actions for violations or changes to the Judgment of Divorce. Often, this type of agreement was reached after someone or both parties ran out of patience and/or money, and very reluctantly and unhappily agreed to the terms of divorce which were “hammered out”.
Portions of this FAQ page were reprinted with permission from the New York State Council on Divorce Mediation.