| Q. | What is mediation? |
| A. | Mediation is a voluntary, cooperative settlement process in which a neutral professional helps you make practical, informed decisions to resolve your differences.
The decisions you reach are guided by the law, and limited only by your creativity and imagination. |
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| Q. | Do I need an attorney? |
| A. | The question is, do you want an attorney? Some parties elect to retain an attorney to consult with, during the mediation process; usually between mediation sessions. The parties may use the attorney to ask questions, bounce ideas off of, and clarify the legal issues. At the end of the mediation process, and prior to signing a Property Settlement And Separation Agreement, you may have an attorney review the document and provide feedback. Ultimately, the choice is yours: some people retain an attorney, some do not. |
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| Q. | Is mediation for everyone? |
| A. | No. The only requirement for a successful mediation is an honest desire to discuss separation issues.
However, some people are so filled with anger and resentments that it makes mediation impossible. These people who are so affected by the break-up of their marriage really need to retain a litigation attorney who will zealously represent you, making motions in court, demanding the production of documents, conducting depositions of the other party and witnesses, and vigorously representing you at trial. Litigation attorneys have developed a special set of skills, knowledge and techniques for this approach to conflict resolution. A litigation attorney once shared with me that if his client wanted to do mediation, then they would have to find another attorney, because, "I don't mediate, I litigate!" |
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| Q. | What about the children, custody and visitation? |
| A. | In mediation, these issues are usually referred to as "parenting arrangements" which is a more cooperative phrase; terms such as "custody" and "visitation" can become fighting words and the children become pawns or victims of the battle between the parents. In litigation, where parents can not agree, usually one parent is determined to be the most fit and is granted custody and the other parent is granted visitation; usually alternate weekends and one or two nights during the week. In mediation, parents work to create a parenting arrangement which is responsive to the work demands of each parent and the needs and activities of the children.
Often in mediation, through the good will which is generated, parents do not even set a strict schedule; instead, they agree each week to compare their schedules and the obligations of the children and decide which parent will pick the children up after school, who will get them to lessons or sports, who will provide dinner and who will help them with homework. Quite honestly, who can say what their schedule is for more than a few days or a week at a time? In this way, both parents and the children benefit with quality time spent with each other. |
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| Q. | What does mediation cost? |
| A. | The average total cost of mediation for both parties is approximately $2,000.00, but this estimate may be less or more depending upon the level of agreement or disagreement between the parties and the complexity of the issues involved. The average cost of a litigated divorce in Western New York is approximately $4,000.00 per spouse. |
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| Q. | What happens once the mediation process is completed? |
| A. | The couple has at least two choices: 1) get divorced right away on fault grounds, usually "Cruel And Inhuman Treatment", or 2) wait one year and secure New York's version of a no-fault divorce, referred to as a "Conversion Divorce". In either case, usually only one spouse retains an attorney to prepare and serve divorce papers, and ultimately to prepare the Judgment of Divorce. The other spouse takes a default posture and allows the divorce to proceed uncontested, as all issues are set forth in the Property Settlement And Separation Agreement. |
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| Q. | Upon the completion of the mediation, is it possible for the attorney-mediator to represent one of the spouses to secure the Divorce Decree? |
| A. | I believe it would be a conflict on interest to initially serve as a neutral mediator and then later switch hats and represent one of the parties as an attorney. There are attorney-mediators who think this switch in roles is okay, and they will act as attorney for one of the parties upon the completion of mediation. In good conscience, I can not act as attorney after I have performed the services of a mediator. |
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| Q. | Will mediation repair our marriage and bring us back together? |
| A. | Mediation is not counseling. Mediation may help the couple to improve their communication, listening and problem-solving skills, but mediation is not a substitute for marital counseling. Issues of blame, fault and guilt must be referred to a counselor which is cheaper and more effective than trying to use the litigation process to "punish" the other spouse. |
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| Q. | My spouse refuses to try mediation, what can I do? |
| A. | Mediation is voluntary; the process is not binding and either party may stop mediation at any point short of signing the Property Settlement And Separation Agreement, which once signed is a valid and binding contract. Often it is effective for one spouse to offer to pay for one mediation session, to allow the other spouse to ask questions and see for themselves if they wish to proceed rather than resort to litigation. |
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| Q. | We already hired attorneys and started litigation, what can we do? |
| A. | It is always possible to call "time out" and request a general extension of time for settlement discussions to take place. The parties may participate in mediation, and retain their attorneys to consult with, review documents prior to signing the same, and to finish the divorce once the mediation process is completed. |
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| Q. | Is a mediated agreement enforceable? |
| A. | Once the parties have shared all relevant financial and related documents, reached agreement and signed a Property Settlement And Separation Agreement, this forms a contract which is valid and enforceable as such. Usually, parties who complete mediation have created an agreement which truly represents their decisions on the issues, so enforcement is not a problem. People respect and honor agreements which are made voluntarily.
In litigation, it is not uncommon after a lengthy divorce for parties to continue fighting by each bringing actions for violations or changes to the Judgment of Divorce. Often, this type of agreement was reached after someone or both parties ran out of patience and/or money, and very reluctantly and unhappily agreed to the terms of divorce which were "hammered out". |
