Mediation provides a “safe” place for couples to work out the terms of a settlement agreement with the help of a skilled neutral professional. It is a less costly and less adversarial process than traditional divorce.
What is the mediator’s role?
The mediator acts as a facilitator and problem solver. She identifies the issues that must be resolved in every separation agreement and helps the couple establish and attain their priorities, while encouraging them to compromise where necessary. She draws upon her knowledge of the law and experience to make suggestions as to how to resolve issues. She also acts as a “voice” for a spouse where he or she is not being heard by the other. She also may give information about how the legal system resolves issues. She does not make any decisions. All of the power remains with the couple.
What if my spouse and I are very angry and upset with each other?
Most divorcing couples experience a range of emotions, including anger and depression. These emotions need to be expressed in a forum that does not exploit the negative feelings, but allows them to be expressed. Most couples find that after giving vent to anger they can recover enough to do the work that is required to conclude an agreement.
Do I always meet together with my spouse and the mediator?
It depends. Normally, mediation works best with both spouses present at all sessions. Occasionally, however, where emotions run so high that the couple cannot recover enough to accomplish the task at hand in the mediation session, the mediator might suggest meeting separately. This is done only if both spouses agree.
How much does mediation cost?
Mediation is always less costly than traditional adversarial divorce. The cost of mediation depends on the legal, financial and emotional level of complexity of the situation. This is assessed at the initial session for which there is no charge. A fee is then established that will include up to a given number of mediation sessions, phone time, computer time, and the agreement. If mediation terminates before an agreement is drafted, time is charged on an hourly basis and the balance of the retainer is returned. There is an additional fee for the preparation and processing of divorce documents.
How long does mediation take?
The length of the mediation process varies greatly from couple to couple. It depends on how ready the couple is to resolve the issues, whether there is a need to have an independent expert evaluate an asset, the couple’s work and vacation schedule, and various other elements. Couples have resolved their matter and concluded an agreement in as few as one or two sessions and as long as two years, meeting sporadically over time. The mediator will take her cues from the couple’s time frame, but may encourage the couple to focus if the process seems to be languishing.
What if my spouse and I are ambivalent about getting divorced?
The mediator should suggest strongly that the couple see a marriage counselor and not rush into a divorce. It is possible to enter into an “interim agreement” that can protect both spouses’ rights, arrange for a parenting schedule and financial support to give the couple some security if they decide that a trial separation is the best path to pursue while they work with a therapist.
What if my spouse and I do not agree on the value of our assets?
The mediator works with independent experts such as real estate appraisers and forensic accountants to assist in defining and evaluating marital assets. The expert is retained by the couple and can agree that the expert’s opinion will either be binding or non-binding.
Do I still need my own attorney if I use a mediator?
Everyone has a right to consult with his or her independent attorney at any stage of the mediation process. If the agreement that is reached in mediation is consistent with New York law and if the couple is comfortable with the terms of the agreement, the mediator will leave it up to the individual spouses to decide whether or not to have the agreement reviewed by an independent attorney.
Is it required that we follow New York law?
Mediation is a flexible process that respects each couple’s right to make choices that make sense for them in the context of their lives. Some couples choose to make financial arrangements that do not follow New York law. In such a case, the mediator will insist that the party who is giving more or getting less than New York law would require consults with an independent attorney before signing such an agreement.
What if mediation fails?
The traditional legal system is always available if a couple cannot conclude an agreement in mediation. The cost entailed in mediation is so much less than the cost of pursuing litigation, that it usually makes sense for a couple to give mediation a whole-hearted try before turning to the courts.