Most residents of New York are rightfully apprehensive about going through a divorce. The outcome is uncertain, the cost can be astronomical, the process itself can be stressful, and both parties will experience a range of unpleasant emotions, ranging from intense anger, depression and antagonism toward the other party. Most experienced divorce lawyers (and many judges) now recommend using mediation as a tool to smooth the path between an unhappy marriage and a helpful uncoupling. Mediation is a process that uses the wishes of both parties to craft a divorce agreement that will serve the interests of both parties.
The mediation process in a nutshell
Mediation uses the services of a neutral third party to help the parties find solutions to their areas of disagreement that are causing the most stress and anxiety, usually child custody, spousal support, and property division. The parties meet with the mediators (and usually their attorneys) to explore areas of conflict and potential solutions. The mediator does not make any decisions regarding the couple’s disputes but instead attempts to suggest solutions that will equitably resolve these issues and help them end their marriage on an equitable basis. If the parties are able to reach mutually acceptable solutions to their differences, the mediator will draft a contract that embodies these solutions. The agreement then becomes a judicial order that can be enforced as can any other judicial order.
The advantages of mediation
The following are some advantages of mediation:
- The major advantage of mediation is that it is relatively low cost. Because neither lawyer is required to prepare the case for trial, legal fees in a mediated divorce are far less than in a fully contested divorce.
- A second advantage of mediation is the confidentiality of the proceedings. The court records of a divorce are public and may be accessed by any citizen. The records of a mediation are confidential, except for the final order. Most mediators destroy any notes they may have made, and in New York and almost every other state, mediators cannot be compelled to testify if the divorce requires a full-fledged trial.
- The parties have full control over the course of negotiations, and nothing becomes final without the complete agreement of both parties. As mentioned above, the mediator has no power to compel the parties to accept any portion of a settlement agreement.
- The results of a successful mediation also give both parties a low-cost means of enforcing compliance with the agreement. Both parties have a stake in ensuring that the agreement is enforceable and they are less motivated to flout the agreement.
Many divorcing couples have used mediation to forge a satisfactory agreement on the terms of ending their marriage. Any experienced divorce attorney can provide helpful advice on the mechanics and effectiveness of using mediation to negotiate the terms of a divorce.
