If you and your spouse are lucky enough to agree on the terms of your divorce, it will likely benefit you to undergo an uncontested divorce method like mediation. Continue reading for more information on why an alternate method of divorce may be in your best interest and how an experienced Long Island uncontested divorce lawyer at Barrows Levy PLLC can help you weigh your options.
How Does the Divorce Mediation Process Work in New York State?
The divorce mediation process allows you and your spouse to work together to negotiate the terms of your divorce outside of a courtroom. With this alternative method of divorce, an unbiased third party will assist you and your spouse in discussing any issues that have yet to be resolved. Once issues such as child custody, child support, division of assets, and alimony are agreed upon, then your divorce can be finalized. Of note, this third party does not necessarily have to be an attorney.
Are There Benefits to Choosing Divorce Mediation in New York State?
If you and your spouse have remained amicable, it may be beneficial for you to opt for divorce mediation. More specifically, the benefits of using this alternative method of divorce are as follows:
- Control: If you and your spouse were to undergo the litigation route, a judge would have the right to make the final decisions in your settlement agreements. Mediation, rather, gives you and your spouse control over the outcome of your divorce.
- Confidentiality: Mediation can help keep the things you discuss confidential and out of the courtroom. It’s important to understand, however, that New York has not adopted the Uniform Mediation Act, and therefore has no general mediation privilege; confidentiality, instead, stems from three separate sources:
- The agreement signed with the mediator
- CPLR 4547, which makes settlement discussions inadmissible as a means of proving the validity of a claim
- Where a court has referred your case to ADR, 22 NYCRR Part 160. Those court rules also carve out disclosures involving a credible threat of serious and imminent harm or child abuse or neglect. Read the confidentiality terms before your first session.
- Efficiency: Mediation can be a quicker process than other methods. However, the length of the process will ultimately depend on you and your spouse and the number of marital issues you have to settle.
- Cost: The litigation route may require attorney expenses and otherwise, making mediation a cost-effective alternative.
- Choice: In mediation, you and your spouse are given the option to participate in this voluntary process, so you can start or stop at any time.
- Family: Mediation usually benefits your family involved in the process, especially if you have children together. While litigation trials can often become hostile, mediation allows for healthy conversations.
What Does a Divorce Mediator Actually Do?
The primary objective of the mediator is to facilitate conversation between the spouses by scheduling sessions, helping keep the conversation open, and explaining settlement options. Understanding the limitations of the mediator is critical.
- A mediator does not decide anything: Unlike a judge or an arbitrator, the mediator does not have the authority to impose terms or conditions of your divorce. Every decision is ultimately up to you and your spouse to determine.
- A mediator does not represent either of you: The mediator can explain how the law works, but they cannot provide you with legal advice, including what’s in your best interest. This is because doing so would compromise their neutrality toward the other.
- A mediator is not a marriage counselor: The session exists to settle the terms and conditions, rather than to examine the relationship or attempt to reconcile between the spouses.
When Mediation Is Not the Right Choice
Ultimately, mediation depends on two people negotiating in good faith on relatively even footing. There are several situations that may undermine your ability to navigate this matter:
- Domestic violence or intimate partner violence: A spouse who fears retaliation cannot freely negotiate with a spouse they fear. New York’s courts take this matter very seriously. As such, mediators that handle matrimonial and family cases must go through intimate partner violence screening training and ongoing education in it.
- A significant power imbalance: When one spouse holds control over the finances or has emotional leverage over the other, the process may confirm the imbalance rather than fix it.
- Suspected hidden assets: Mediation does not have subpoenas, depositions, or compelled disclosure. If you believe your spouse is hiding or concealing assets, litigation provides you with discovery tools that mediation cannot provide.
- Untreated substance abuse or cognitive impairment: Either issue can prevent a spouse from negotiating or consenting meaningfully during mediation.
Do You Still Need Your Own Attorney?
It’s important to understand that, despite the fact that mediation involves a neutral mediator, nothing bars you from obtaining an attorney. However, this neutrality is exactly why you should consult an experienced attorney. Because no one in the room can provide legal advice, you have no way of ensuring that the agreement represents your best interests. As such, allowing your attorney to review the agreement before you sign is critical to protecting yourself, especially regarding property division, as New York divides property in accordance with equitable distribution rather than automatically splitting property in half.
Choosing a Mediator and Preparing for the Process
Because the mediator does not need to be an attorney, credentials may vary. The court utilizes the standard under 22 NYCRR Part 146, which requires that a mediator on a court roster must complete at least 40 hours of approved training, which includes 24 in basic mediation skills and 16 specific to the subject area, plus documented recent experience mediating actual cases, six hours of continuing education every two years, and redesignation to the roster every two years.
A private mediator you hire directly, not through the court, is not bound by Part 146. As such, you should inquire about their experience before continuing.
Importance of Preparing for Mediation
Preparing for a mediation session is critical. As such, understanding the process and the outcomes you’d like is critical. Preparation can help keep your emotions out of the negotiations.
Additionally, you should anticipate compromising, as mediation requires both parties to reach an agreement, rather than providing a spouse with everything they want.
How Mediation Compares to Other Alternatives
- Litigation: A judge will hear both sides, review evidence, and ultimately issue a decision on the matter.
- Collaborative divorce: A series of meetings will occur between both spouses and their respective attorneys. There is no neutral third party. Ultimately, each spouse’s legal representation will guide them toward a resolution. In the event the parties cannot reach an agreement, the attorneys will withdraw, and each spouse will need to obtain new representation for litigation.
- Arbitration: A third party listens to the sides of each party and issues a decision on the matter, acting like a private judge. However, unlike mediation, the decision of the arbitrator is imposed, rather than negotiated.
If you are still unsure as to which route is best to take, do not hesitate to reach out to one of the divorce attorneys in Long Island today.
Contact Our Experienced New York Firm
If you need a Long Island lawyer who has significant experience handling family and estate planning matters, contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
