Frequently Asked Questions about Divorce Mediation
What should we expect from the mediator?
You can expect your mediator to remain neutral and guide you towards an agreement that both parties are comfortable with. Your mediator will listen to the concerns and goals of each party and help you focus on your priorities and the issues that concern you most. The only agenda the mediator has is to help you settle your matter in a manner where both parties are satisfied with the result. The mediator has the ability to create settlement scenarios that fit your specific facts and circumstances.
Does the mediator give legal advice or remain neutral? The mediator begins and ends the process as a neutral third party. At not time will the mediator give either party legal advice. The mediator will provide with you with information on the laws that affect your situation, however you should not rely upon same as legal advice.
Do we need attorneys to engage in mediation?
It is strongly recommended that at the conclusion of the mediation both parties engage independent review attorneys to go over the settlement agreement. Some couples engage attorneys to take part in the mediation although that is not necessary. Prior to mediation some clients will meet with an attorney to better understand the legal process and the laws applicable to their situation.
We have already consulted attorneys, is it too late to mediate?
No. Clients often times seek out a mediator after litigation has either commenced or been threatened. When faced with the prospects of the cost and time involved in litigating their matter, parties sometimes decide to remove themselves from the litigation and try mediation. As everything in mediation is private and can not be used in litigation, there is no harm but rather tremendous benefit in stalling the litigation to attempt a mediated settlement.
How long does divorce mediation take?
The length of mediation depends on the level of cooperation between parties and on the complexity of and number of issues to be decided on. On average, the length of mediation ranges between 3 and 7 sessions, however it could be less if there are no children eliminating the need to cover the parenting and support issues involved in those cases.
What happens if one party refuses to participate?
Mediation is a voluntary process and can only continue with the participation of both parties.
Can parties reach an agreement that does not lead to an immediate divorce?
Yes, in many cases parties enter into a separation agreement which under the laws of the State of New York can be converted into a judgment of divorce after one year. This allows the parties to sometimes maintain costly health insurance for the other spouse.
Why would that be necessary?
Upon divorce the spouse being covered on the other spouse’s medical insurance would have to be removed from same; adding to the expense of the parties.
What is equitable distribution?
As opposed to certain states where property is divided as community property in New York the distribution of property is not necessarily equal between the parties. The Courts take into consideration many factors including whether property is marital or separate before adjudicating the rights of the parties. Marital property is usually acquired during the marriage, although there are several exclusions under New York law, ie: inheritance and gifts from family and personal injury awards. Separate property is property acquired before the marriage or defined as such in a pre or post nuptial agreement.
Can mediation be used for a pre nuptial or post nuptial agreement?
Absolutely, these are circumstances where the parties are not looking to add fire to their happy and cooperative relationship. Many times the spector of a pre nuptial or post nuptial leads to suspicion and hints of mistrust. This is not the case; it is merely a party or both parties seeking to protect his or her property not necessarily from the other party but rather from the legal system and the Domestic Relations Law. By discussing these issues in an open, private and safe setting the parties are able to discuss this issue that many times threatens an otherwise thriving relationship.