Divorce mediation can be an excellent option for resolving disputes if couples are willing to commit to the process. In mediation, spouses work with a mediator to find common ground to settle conflicts without litigation. Although mediation is an out-of-court process, the parties should prepare for it in the same way they would for litigation to ensure that a fair result is achieved.
What Is Divorce Mediation?
Mediation is a voluntary process that occurs outside the courtroom wherein the parties work with a neutral third-party mediator to negotiate a settlement. Mediators do not give legal advice or force parties to accept a result. Instead, they facilitate discussion, allowing the parties to air grievances while keeping the focus on resolving the outstanding issues arising from the marriage.
There are fewer rules and formalities in mediation compared to litigation, and thus, it tends to be less expensive and faster than going to court. It also offers more control, as either party can end the process at any time, and spouses can develop their own solutions instead of being locked into what a court might impose.
How Does Mediation Work?
Both parties must agree to mediate their disputes and agree on a mediator. A good mediator should have extensive specialized training and experience in divorce mediation and negotiation. A retired matrimonial judge is an ideal choice given their vast background and experience on the bench.
The mediation process typically involves 3-6 sessions of 2 hours each, where the parties try to resolve as many issues as possible. The more areas the parties can agree on, the fewer matters there are to litigate.
If an agreement is reached, an attorney will draft a settlement agreement, which should be reviewed by the other side’s attorney. The agreement is then submitted to the court when filing for divorce and will become part of the divorce decree. If the parties have issues that they were unable to settle, they can still go through the litigation process.
How Should Spouses Prepare for Mediation?
The parties should review the relevant facts and issues in their case. For example, on the financial side, both parties must share their financial statements, tax returns, loan documents, business records and other documentation before meeting with a mediator. Personal and real property should be appraised, and pensions, retirement accounts and business interests should be valued by an expert. This information is essential to determining how to fairly split marital assets and calculate spousal and child support.
With respect to custody and parenting time, parents should understand that New York policy favors joint custody and courts prefer that parents work out parenting time schedules and other disagreements on their own. However, if parents cannot agree, courts utilize a ‘best interests of the child’ standard in deciding the dispute. The court will examine factors such as the history of the family, the relationship between the parent and child, the time each parent spent with the child, the sharing of parental responsibilities, the participation by the parent in the child’s activities, the wishes and work schedules of the parents and possibly the wishes of the children, depending on their age. Parents should gather information relevant to these factors to bring to the mediation when presenting their respective positions.
Regardless of the nature of the conflict, both sides should consult with their own attorneys during and after each mediation session. The attorney will advise them of their legal rights and obligations under New York law and explain the impact of what they are agreeing to versus what they are giving up.
While mediation is not right in every case, where appropriate, it can help couples achieve a faster and more peaceful and satisfying outcome. If you are considering divorce, contact us to discuss whether your matter would be best served by mediation or litigation.
