What Is Divorce Mediation

Divorce mediation is an alternative to litigation that can be less expensive. Mediation can also be a welcome alternative to our contentious New York divorce litigation system. Some states require that spouses mediate or arbitrate their divorce or separation issues. New York does not, but does allow the mediation process to supplement or bypass the litigation system.

New York divorce mediation is a process where by the parties work with a mediator or mediators who help 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.

Is Divorce Mediation For You

In New York, divorce 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 a mediator instead of with just 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.

Divorce 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.

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 might be unsuccessful. 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.

Who is the Mediator

In New York, there are no licensing or specific training requirements for divorce mediators.  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.

When hiring a divorce mediator it is a good idea to interview two or more mediators to see who you and your spouse will be comfortable speaking to. You should ask each mediator that you interview what their credentials and training are. Ask if they are certified as divorce mediators. In some states, anyone can hang out a shingle and call themselves a mediator. That is true in New York.  Not every mediator takes courses on mediation and receives training and a certification. 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.

How Does Divorce Meditation Work

In our experience New York divorce mediation is successful when the mediators require that both parties have independent attorneys. A mediator should not provide legal advise to either party and, a mediator cannot provide the in depth individual advise that each party needs to successfully complete the mediation process. 

Having an independent attorney can benefit the mediator and the divorce mediation process. If a dispute occurs in mediation and the parties are in disagreement, the mediator can ask each of the parties to consult with their attorneys on that issue. After consulting with their attorneys, each party can then resume divorce mediation with a better understanding of their legal rights, the position that they want to take, and their spouse's position.

Having each of the parties retain independent attorneys can increase their upfront costs. However, it results in a mediated agreement that does not "fall apart" after the mediation is completed.   We have handled many cases where parties who did not have independent attorneys ended up in court after completing their mediation because they did not understand their legal rights.

What Happens in Divorce Mediation        

The divorce 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 in divorce and the options available to them.

 When the parties have completed the divorce mediation process, they will receive a document from their mediator that is usually called a Memorandum of Understanding. That Agreement is not binding. If must still be reduced to a written legal Agreement to be enforceable in New York.

A Memorandum of Understanding might be ten or fewer pages . A binding legal Agreement can be twenty pages or longer. The reason for the difference is that the binding legal Agreement will contain all of the legal language necessary to turn the Memorandum of Understanding into a valid and enforceable legal separation Agreement.

It is rare for the parties not to have their Memorandum of Understanding translated into a binding legal Agreement. Very few people engage in the process of mediation only to throw all of their work away after they have finished. But, since the Memorandum of Agreement is not binding, that can happen.

In our experience, the parties to divorce mediation are much more likely to have their Memorandum of Understanding conclude with a binding and legal Separation Agreement if they have had independent legal advise throughout the mediation process. 

How Do You Start Mediation

If you are contemplating mediation, you can contact our office for a consultation to discuss the mediation process.  Two of our three attorneys are trained as mediators.  We do not do the mediation ourselves, but we enjoy working through the mediation process with clients and we refer many of our clients to mediation.

If you would like to contact a mediator first, we recommend Capital District Mediation.  You can review their website at:  www.CapitalDistrictMediation.com .

We also provide referrals at Millennium Divorce divorce mediation.