Each mediator has their own approach; therefore this blog entry is not intended to be a definitive map for divorce mediation in Long Island and surrounding areas. The purpose of this article is to be illustrative of how a typical mediation could proceed.
A couple that is interested in getting a mediated divorce can come to the mediator’s office for a half hour no fee consultation. The mediator will meet with the couple together as he or she is a neutral person. Although some mediators are experienced divorce lawyers, as the mediator, he/she is not acting as the lawyer for either party. In the initial consultation a mediator will describe the process and answer the general questions that the wife or husband may have.
If a couple is ready to begin the process after the half hour consultation, then they can usually start to work on a settlement of the issues right away. The first topic that is usually addressed is what the grounds for the divorce will be. More often than not, there is an immediate agreement to use the no fault ground that now exists in New York. All that is required for this ground is that either the husband or wife needs to be able to swear that the marriage has been irretrievably broken for at least six months. It is not the husband’s fault or the wife’s. One person will need to be the plaintiff and the other the defendant when the actual divorce is filed. Usually this is not a source of contention.
If the couple has children, the next topic usually tackled is what the custody and visitation or parenting time schedule will be. There are different forms of custody such as residential custody with joint legal custody, shared custody, or sole custody to list some of the most common arrangements. A specific parenting time schedule can be made, but some people do not want to make a specific schedule. It varies from couple to couple.
Next, the financial aspects between the couple need to be resolved. There should be a full understanding and disclosure of the financial state that each couple is in. The financial issues include child support and maintenance (formerly known as alimony) and whether there is going to be any, and if so for how long. The other big category of financial issues is equitable distribution. This includes dividing up all marital assets including, but not limited to, cash, furniture, real estate, retirement accounts, degrees, businesses, pensions, and other personal property. An allocation of any marital debt and identification of separate property should be made.
The mediator is there to facilitate the agreement process and help identify the different options to get through sticking points. If your mediator is also an attorney, the mediator can draft a legal agreement that becomes the stipulation of settlement for the divorce. It is advisable for both the Husband and Wife to review the agreement with their own review attorneys to make sure they understand the agreement and their legal rights as that is not the role of the mediator. Once everyone understands and is satisfied with the agreement, it can be signed. The parties can then proceed with a no fault uncontested divorce. Often times the mediator can be the drafting attorney to prepare and submit the uncontested divorce package to finalize the divorce.
Mediation is a great alternative to litigation for the couples that are willing and can do it. People can craft their own agreements that make sense to them. In almost all cases it is less expensive than litigation.