The Mediation Process
Mediation - A Practical Divorce Option
Some couples seeking a divorce will find the mediation process the best solution for their needs. Mediation provides a constructive, cost-efficient way for divorcing couples to reach a resolution — with the help of independent professional assistance to address all the relevant issues.
Using this process, I serve as an impartial mediator, where I do not represent either party. Instead, I assist both parties in reaching an amicable agreement, memorialized in a settlement or separation agreement, which becomes the guiding document for their divorce or separation.
In addition, I often serve as “mediation counsel” in which I assist an individual client who is working with a mediator. When I am serving as mediation counsel, I help my client understand the mediation process and educate them on the law to assist them in reaching reasonable outcomes in the mediation process.
The Advantages of Mediation:
- The parties maintain control of the process—scheduling is often after business hours.
- The parties’ divorce is kept “private”—personal, financial, and emotional issues are not discussed in an open courtroom.
- The cost is usually substantially less than hiring separate litigation counsel and litigating the matter in court.
- Experts can be consulted to assist the parties in valuing their assets and in dealing with any children’s issues.
- The parties can craft personalized and often creative solutions tailored to their particular needs.
- The process is generally much faster than a litigated divorce.
- Previously “contested” divorce issues can be resolved amicably without acrimony or without one party “winning” and the other “losing.”
When I am serving as a mediator, I encourage each party to consult with mediator-friendly outside counsel to provide them with legal advice and to provide a sounding board for the issues that are being discussed during the mediation process.
An attorney provides vital guidance and assistance with documentation during mediations and plays an important role in reviewing any separation or settlement agreement that is drafted upon the completion of the mediation process.
Please visit mediation attorney services to learn about the type of legal counsel I offer when providing these services (Note: no attorney can serve as a mediator and mediator counsel in the same proceeding).
Mediation Overview: The Process
Divorcing spouses will choose a mediator. This is a great opportunity for the parties to find someone they are both comfortable with and who can help guide them towards a satisfactory resolution of their divorce. The mediator doesn’t take sides. Initially, if I am contacted as a potential mediator, I generally refuse to speak with either party separately other than for the purpose of making an initial appointment. It is critical to the process that both parties feel that I maintain my independence.
The first joint session marks the beginning of a series of joint and caucus sessions that work toward reaching the most favorable divorce settlements for both parties. The mediation process generally follows a logical format and progression:
- Mediator’s Opening Statement
I will begin the first joint session with a formal introduction:
- Introduce qualifications
- Reveal affiliations with either party, if any (i.e., unions, memberships, acquaintances, etc.)
- Request consent to act as mediator
- Parties’ Opening Statement
Each party is given the opportunity to explain their position and interests in the forthcoming mediation proceedings. I generally encourage both parties to raise any questions or concerns about the process. Very often what starts out as a scary and intimidating situation is diffused through open discussions about the process—by reaching a comfort level for all the parties.
- Joint Discussion
We then begin to identify issues of agreement and disagreement in a series of discussions of the divorce settlement issues. I listen to both parties and manage the discussion ensuring equitable and respectful communication.
- We review financial documents together and seek to answer whatever questions arise. Couples are often surprised how detailed the discussions become, but they soon realize that often “the devil is in the details” and the time is better spent during the mediation process than after they are divorced.
- If necessary, outside experts like property valuation experts, mental health professionals, or educational experts for children’s issues are consulted so that the parties have a reasonable comfort level when it comes time to make decisions.
A caucus session is a private meeting with the mediator and one of the parties. It is a technique that is available to discuss sensitive issues or where settlement discussions have gotten bogged down.
The mediation process concludes after a series of caucus and joint discussion sessions in one of two ways:
- With settlement agreements
- Without settlement agreements
- Both parties can reconsider their decision to end mediation sessions, and the process can be revisited again in the future. Mediation is entirely voluntary and it’s pay-as-you-go. If a party feels the process is not working, they may withdraw.
- Mediation succeeds when both parties genuinely want to reach an agreement, and are prepared to spend the time and effort to do so. However, in the event either party feels the process isn’t working for them, they may withdraw from the process and employ a litigation strategy.
After the mediation process concludes divorcing couples begin the final legal process to end their marriage.
Agreements reached during mediation sessions will be drafted into legal documents. Both parties review these documents with their legal counsel. Either party will then file for divorce. In New York, it is generally not necessary for either party to appear in court to obtain a final divorce once a mediated settlement agreement is entered into by both parties.