There are different ways to handle a divorce in New York, including mediation, litigation, and collaborative divorce. How the divorce is handled can substantially affect the outcome and cost, but there are pros and cons to each approach.
Divorce mediation is a popular form of alternative dispute resolution. Mediation involves a voluntary settlement process that allows a couple opportunities to make their own decision about significant decisions, such as where the kids will live, parenting time or visitation, how property will be divided, and whether one spouse will pay support to the other. Often, divorce mediation is not appropriate for cases involving domestic violence. In contrast, litigation in which negotiations are unsuccessful can lead to a trial after which a judge will make important decisions for the couple.
A trained divorce mediator, who should be a neutral party with no prior affiliation with either spouse, conducts the mediation and sets the structure. Generally, it is a good idea for both parties to also have legal representation from separate review attorneys, if not before, then when an agreement is drafted. This provides added protection against any oversights that occur during mediation. The mediator should be experienced and very familiar with the Domestic Relations Law and other laws governing divorce in New York.
First, the spouses meet with the mediator to review and discuss the issues presented by the divorce. The divorce mediator is supposed to facilitate the discussion and negotiation, helping the spouses reach agreements that meet their needs both as individuals and as a family. However, the couple retains responsibility for reaching an agreement and coming to a decision about all the issues. At the end of the process, the divorce mediator will draft a written document. Sometimes the document is just a Memorandum of Understanding that explains the agreements reached, but in some cases, the mediator prepares the actual settlement agreement.
Although in most cases, these different steps are followed, mediators have different styles, which can affect the outcome of the process. Some mediators utilize various different approaches in order to facilitate a resolution. For example, sometimes I might try to provide substantial direction if the parties are stuck and do not have their own ideas about resolving an issue. Experienced litigators, like myself, can have opinions on how likely it is that the court will sign off on a particular agreement between the spouses. For example, they may have strong opinions about whether the court is likely to agree with a resolution concerning the child’s best interests, which is the standard for child custody determinations. They may also offer more concrete proposals about how to resolve a particular conflict.
Other mediators offer fewer opinions and try to prompt the spouses to reach their own conclusions by asking questions, validating the parties’ points of view, looking for any interests that are beneath the surface, analyzing the options available to resolve conflicts, and relaying information in a diplomatic or facilitative style. At times I will adopt this style as well. These mediators are less likely to offer recommendations, predict whether one spouse or the other’s position is more likely to be supported by a judge, or give advice on the outcome of the divorce.
Yet another style is similarly facilitative but focuses on empowering the spouses and helping them to recognize each other’s points of view in order to change view points and resolve issue impasses. Another similar style focuses on reframing the story of the couple’s relationship in order to allow each party to get enough distance from the conflicts to reach resolution on the issues needed to get the couple separated or divorced.
Another area of difference in mediation styles is the use of breakout sessions or caucuses, which are meetings between the mediator and one of the spouses, separate from the joint mediation that involves both spouses. Some mediators find it helpful to give each spouse the opportunity to disclose information that he or she doesn’t feel comfortable disclosing to the other spouse. Other mediators do not believe that caucuses are helpful.
The appropriate style for a couple trying to get a divorce is a matter of personal preferences. No one style is objectively better than the others. In many cases, mediators use a combination of approaches. However, before you sign on with a particular mediator, you should question the mediator about his or her style and process to figure out whether it is likely to work for you and your spouse.
If you are considering using mediation for your New York divorce, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law lawyer and mediator.
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