This blog is part three in my summary of points about divorce mediation take from my blogs over the years –
42 – Child Custody topics can be worked through and agreed upon in mediation. One of the issues we can and should address for a comprehensive agreement is what will be the custody arrangement, i.e.: true shared custody; residential custody to one parent; joint legal custody; or sole custody?
43 – Parenting time arrangements can be discussed and agreed upon in mediations. It can be as open ended as language such as the parties shall each enjoy liberal parenting time as shall be agreed upon going forward. Other people like to have a more specific schedule of parenting time. We have come to arrangements where the parties split the time by alternating weeks or have what we call rolling fours and threes (four nights a week to one parent with four to the other parent then flipping again and again). Other schedules could be that the “non-residential” custodial parent enjoys time with the children on weekends, be it alternating weekends or some other arrangement. Frequently we may include that the parents will alternate or share holidays, school breaks, and special occasions in some fashion. Usually we include vacation time for each parent as well. There are countless variations for parenting time schedules as each family is truly different.
44 – Unmarried couples can use mediation for custody and parenting time as well as the traditional divorcing couple. A little differently though than divorce mediation I can draft the agreement for custody and parenting time. However, to be made into a binding court order the couple will need to bring the agreement to the Family Court, via a petition (that I can help the draft), without me as being listed as one of their attorneys. This process is different than divorce mediations where an uncontested divorce is submitted without a court appearance being required while in Family Court appearances are always required when a petition is filed.
45 – College costs can be included in a mediated agreement about child support. For younger children, the couple can have the choice to leave the issue for the future, when the children are college age, or address it at the time they are making the child support terms in their divorce or child support case. We can include decisions such as whether the parental share for college costs are to be capped at the cost that it would be for a SUNY (State University of New York) school or not. We can agree upon and define what college costs are to include, such as should it be: Tuition, room and board, expenses, travel, books, SAT classes, applications or other items?
46 – Divorce mediation is one process, among different routes to get divorced. Others include collaborative law, negotiations, and litigation. Typically, in mediation, parties have meetings with only their neutral mediator and the parties present, although some opt to have their attorneys present as well. Collaborative law is somewhere in between mediation and litigation.
47 – It is frequently said that mediation happens in the shadow of the law. While parties are free to negotiate their own agreements, regardless of what would happen if they litigated in court, statutes and case law can be considered in the mediation process. After all, ultimately a court will need to approve the mediated agreement. If it is carefully drafted by an experienced matrimonial lawyer this is usually not an issue. But, also, it doesn’t hurt to be cognizant that if an agreement is not reached in mediation that a court will be guided by case law and statutes to resolve disputes. It is helpful therefore to keep this in mind while mediating as most people’s goals are to reach a resolution sooner rather than later. Why not resolve the matter in mediation?
48 – A selling point to get a partner to agree to mediate could be the price as mediation is in most instances the most reasonable process in cost. The emotional impact is usually mitigated through mediation as well. Litigation is an adversarial process where the name of the game seems to be to build up your side and cut down the other. After all the mudslinging there are often bad feelings left. This is particularly difficult for parents that must continue to deal with each other because of their children, even when they are no longer married.
49 – A couple can decide to switch to mediation at any time in their divorce process. Just because the couple started to litigate or negotiate under the more traditional path (i.e. lawyer v. lawyer), that does not mean they are locked in to one process. After experiencing some pain in litigation such as high fees and a seeming lack of progress the couple might decide to try another path. Litigation will always be there if mediation is ultimately not successful or partially successful for any remaining issues.
50 – Parties can prepare for mediation sessions. In a perfect world each party would prepare for sessions with review attorneys and de-brief with them afterwards. Not everyone takes me up on the recommendation to utilize review attorneys, though. People can still come into mediation sessions having thought about what they would like to achieve in mediation or by gathering financial information and thinking about the years ahead and time with their children. Not everyone plans in advance and we will get to all the topics that need to be covered whether planning has been done in advance or not.
51 – Techniques can be employed by divorce mediators to try to calm conflictual relationships down. I try to allow each person the opportunity to be heard fully on each topic uninterrupted. Certain interim financial and parenting agreements can be made as we work through the entire case. Sometimes we just need to make it to the next mediation session before we tackle more comprehensive settlements or long-term plans.
52 – People can utilize divorce mediators from different backgrounds. A divorce mediator that is also an attorney, like me, can offer the additional service of drafting the legal documents need to settle the case and ultimately the uncontested divorce package. Those that use mediators that are not attorneys can use a review attorney to draft the documents. I often find myself in the review attorney role for individuals that do not use me as their mediator.
Stay tuned for more bullet point blogs on divorce mediation …