All divorces in New York are different except for one inescapable fact: the process is no fun. Most divorces are filled with anger, recrimination, a wish to hurt or damage the other spouse, worries about child custody and support, and many other issues that are upsetting and stress-producing.
The simple view
One of the most effective methods of reducing the stress of a divorce is mediation, which in its simplest form involves the use of a trained neutral third party to assist the couple in untying their marriage and resolving disputes such as child custody and support, spousal maintenance, and division of assets.
Most courts in New York state require couples to use a mediator as an initial step in attempting to resolve the ordinary disputes in a divorce, but a divorcing couple can also decide for themselves to hire a mediator before the court intervenes.
Once a mediator is hired (or appointed), the mediator meets with the divorcing couple and attempts to gain an understanding of the issues in the divorce. Some couples focus on financial matters, such as asset division or child support, while others worry about child custody and ownership of the family home.
The mediator will ask necessary questions to learn more about each party’s position on these issues and will use this information to formulate a plan to resolve the parties’ disputes. Regardless of the issues involved in the mediation, the mediation is completely secret, and the mediator cannot be forced to testify if the case should go to trial.
Who is the mediator?
In most New York mediations, the mediator is either an attorney who has several years of experience practicing as a divorce attorney or is a retired judge. In either case, the mediator is trained to approach every divorce with a neutral point of view, i.e., accept each party’s concerns as valid without trying to convince one party that he or she is wrong.
One of the mediator’s most important roles is ensuring that each party understands the concerns of the other party.
The mediation agreement
If the mediator is successful, the parties will have been able to resolve all their divorce-related disagreements. The mediator does not deal with the problems that allegedly caused the divorce except insofar as he needs this information to lead the parties to an effective agreement.
The mediator cannot force either party to accept a proposal put forth by the other party. A party will be bound only if he or she agrees to accept a proposal from the other party. The mediator will prepare a written memorandum of the parties’ agreement, the parties will each sign the agreement, and the agreement will be filed with the court, later becoming part of the official court order disposing of the case.