In my last blog, I discussed the arrival of presumptive mediation as a mandatory addition to New York divorce cases. Presumptive mediation for family court cases on custody has now arrived in New York, as of the fall of 2019. So far, this is how I have seen this implementation work in the Nassau County family court. When custody cases are filed, whether it’s for a modification of an existing custody arrangement, or it’s a new custody case, the first court appearance will be schedule for mediation. A neutral mediator will be assigned to the case that can work for the court, and the case will be scheduled. The parties will be entitled to have their lawyers in the mediation if they choose. If the court has assigned an attorney to represent the child or children in the case, they will be able to attend the mediation too.
In the family court of Nassau County, parties will have the option to opt out of presumptive mediation. In cases that involve serious allegations of domestic violence, or similar conduct that would lead to an Order of Protection case in family court, mediation might not be a suitable solution. I have witnessed custody disputes in Nassau County that have still been referred to mediation after a Final order of Protection had been entered. However, the referral in that case took place prior to the enactment of the Mandatory Presumptive Mediation program. Both of the parties in the case agreed to attend mediation.
I understand that both parties in Nassau Family courts may opt out of mediation if they choose to do so, and they may ask for the case to be litigated with the referee or judge. Referees are appointed, which means that parties will be asked to sign off on a consent that will allow the referee to become the judge for their case. If both or one of the parties don’t sign off on this request, then the case will be assigned to a judge.
Exploring Alternative Dispute Solutions
Although I am a child custody lawyer, family law attorney and divorce lawyer, I also have my own divorce mediation practice, so I am a believer in alternative dispute resolution. When I am hired, however, to represent a mother or father with a child custody case in the Nassau County, Suffolk County, Queens County or other family courts, my role is not as a neutral mediator. In those cases, my role is to be an advocate for my client. I give my clients the option to have me with them in the mediation session or in the courthouse if they want to try and mediate with the other party with only the court mediator present. My client can also call or text me if they need me to come into the session. I try to stay right outside the mediation room or just down the hall. For me, the comfort of my client will always be paramount.
If the other side in a court case chooses to have their lawyer present, then I will choose to attend their mediation session as well. In most cases, I would sit back when representing a party during the mediation session so that my client can make their own voice heard. My role is to guide my client and answer any questions they have. Some clients may want or require more involvement from me during the mediation session.
Prior to a court appearance, I would discuss my client’s options with them, and what they can expect from the court ordered presumptive mediation sessions. So far, I have seen that any agreements made in the mediation environment by both sides will be shared with the court. This means that I will often discuss with my clients their options when it comes to agreeing to certain things when a comprehensive settlement isn’t available. Sometimes, it makes sense to settle partial agreements, even if a comprehensive settlement isn’t available. In other cases, it may not be appropriate to piecemeal items – particularly if the case will eventually be litigated. But, at times, this too is even desirable.
The mediation that takes place in a family court case can refer to any of the issues that may need to be included in a parenting time or custody order. For instance, the parties may need to determine what the residential custody arrangement is going to be. Additionally, it will be important to think about what the parenting time schedule is going to look like during the week, and during weekends and special occasions. We may need to discuss the arrangements for holidays, and whether relocation with the child will be permitted in any fashion. There are many issues to agree on when it comes to child custody and parenting matters.
Once the session for mandatory mediation is complete, the case can be sent back to the judge or referee that has been assigned to the case. In this situation, I would be present as my client’s lawyer, and rejoin my client if I sat outside of the mediation session, when they appear in front of a judge or referee. The case may need go in front of the referee or judge for further mediation, or the case might begin to be litigated.
To learn more about child custody arrangements, or to discuss concepts like presumptive mandatory mediation with me further, contact my office today. You can arrange an initial consultation (up to the first thirty minutes free).