This is a question that many people need to answer when deciding whether to try mediation for their divorce. I have been practicing matrimonial and family law, for a number of years now as an attorney all around the area. I also handle Long Island Divorce Mediation at my office in Nassau County, New York. My personal belief is that if a couple can do mediation it is preferable to a contested litigated divorce. Among the many reasons I feel that way is that a mediated case is usually faster, less expensive, more tailored for each individual family, and more dignified than a contested divorce. Couples tend to have less animosity for each other after a mediation. Many can remain friends.
It is important, however, that someone who goes through a mediation gain knowledge to know what they might be entitled to if they did litigate. The reason that this is advisable is that a mediator’s role is not to give legal advice to either side. Mediators that are also divorce lawyers are not acting as an attorney for either side during a mediation. A mediator’s role is to be a neutral third party that is there to facilitate parties coming together to make an agreement. Therefore, a concern when mediating is to be mindful of unknowingly making an unfair agreement.
This can be safeguarded against by using a review attorney to go over what was agreed upon in a mediation. People can find their own independent lawyers to go over the settlement that was reached from a mediation. Some mediators can provide names of lawyers that are willing to act as a review attorney to one side of a mediation. Review attorneys might charge an hourly rate to go over the agreement with their client or even offer a flat rate. The review attorney is there to provide legal advice to their client. A review attorney might give assurance if the agreement seems fair or lopsided. He or she can offer suggestions, if there are any, on changes to make to the agreement. The suggested changes can be considered with your spouse with the mediator.
Some people believe that they already have the knowledge necessary to make a fair agreement in a mediation and do not use review attorneys. Although it is a fact that not everyone uses review attorneys, it is recommended that parties to a mediation take this step. It is a worthwhile investment that does not need to be exorbitant in price. People can consult with their own lawyers before starting a mediation, while a mediation is ongoing, or to review the issues agreed upon in a mediation. Parties to a mediation never waive their right to receive their own independent legal advice.
Unfortunately, there are situations when mediation might not be the right choice for a divorcing couple. Cases of serious chronic domestic violence are probably not right for mediation. The concern here would be the unequal bargaining power that could result from a victim and abuser relationship. Another situation is where both sides are not willing to mediate. Mediation is a voluntary process in a divorce. There are rare cases where parties might be ordered by a court to attend a mediation, however, even in that rare situation, people can not be forced into making an agreement. The usual case where parties mediate is when both sides agree to go to work on settling their issues with a mediator of their own choosing.
Another possible situation that mediation might not work is that parties might not be able to agree upon a settlement in their mediation. This might happen because each side is so insistent on their respective positions and refuses to change anything in order to facilitate an agreement. Often times, a mediator can help couples break down these seemingly immutable positions and come to an agreement. But, in the end, everything that is agreed upon in a mediation requires both sides saying “yes”. Some people know from the outset that there is no hope to coming to an agreement with their spouse to settle their divorce or legal separation in a mediation.
I always remember the words of wisdom I hear one Judge tell the parties to a litigated case at their Preliminary Conference. His advice was words to the effect of “The two of you can come together and try to make an agreement to settle this case and have something left do divide. You can also disregard my advice and give everything you have to your lawyers.”
When there is hope, usually mediation is a worthwhile investment of time. People can gain a great deal by choosing mediation. Feel free to schedule a half hour no fee consultation with your spouse and this office to see if mediation is right for you.