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Mediation: An introduction

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In February, I wrote about litigation, describing it as usually the most expensive, antagonistic, and emotionally difficult process for ending a marriage. I’m devoting this column to introducing another process to realize a divorce: mediation.

Despite the many books written on divorce mediation (more than 1,300 on Amazon.com), its growth over recent decades, and the literature showing its benefits and high success rate, this process remains largely unknown or misunderstood by many.

What is mediation?

Expert practitioners Stephen Erickson and Marilyn McKnight Erickson describe mediation as “a communication process by which a husband and wife resolve the practical and emotional issues of divorce or separation in a mutual, cooperative manner as opposed to an adversarial, competitive manner.

“The goal is for each of them to receive the best settlement possible that will satisfy — to the greatest extent possible — their respective needs and interests, now and in the future,” continue the Ericksons in their book “Family Mediation Casebook: Theory and Process.” “The goal of mediation is to prevent the conflict from becoming destructive.”

How does mediation work?

Generally, the mediator and couple sit together in the same room.

The mediator helps the parties identify and focus on the issues so that discussions can be constructive. For instance, the mediator will reframe the question, “Who will get the children?” (an argument begging for raised voices and extreme positions) to the question, “What agreements can you reach, so that you can each be the kind of parent you want to be in the future, and that will allow the kids to be well taken care of?”

The approach and language in mediation are very different than those of the courts, where the issues are ones of custody and visitation, as if children are prisoners — or property that can be owned.

The mediator addresses the financial matters — having each party supply information about bank and retirement accounts, mortgages, leases, etc. — and ensures that information is shared and understood by the parties.

Additionally, the mediator helps them set out and explore their options, such as: what can you do about the house? A buy-out? A sale? Rent it? How would each option work in practice?

The mediator and the parties also discuss fairness. What may seem fair to one may appear as unfair to the other. But by having the parties express their needs and their reasoning, and helping them to listen to one another, a mediator can usually guide them through a negotiation so that they arrive at a deal that seems fair to both.

Parties can consult with a financial planner, appraiser, parenting specialist, attorney and so on to better understand any questions that may require such expertise.

Once parties have reached agreements, and reality testing indicates that they are doable (for instance, not only have you both agreed to a buy-out of the house, but a review of the finances shows that the person keeping it can truly afford it), the mediator encourages the spouses to consult with independent attorneys for the purpose of reviewing the agreements before signing them.

If any issues arise, they are brought back to mediation and resolved.

Why many professionals favor mediation

Many judges, lawyers, psychologists, and therapists favor mediation over going to court, because it is faster, less expensive, and less stressful.

In his recent New York Law Journal article “Encourage Divorce Clients to Mediate,” David Saxe, an associate justice at the Appellate Division, said that the “litigation process often extends into years. It also exacerbates conflicts instead of resolving them amicably.”

Saxe noted that “legal fees can often be enormous, sometimes well into the six figures, for the more contentious cases.” Mediation, on the other hand, “is more focused on the needs of the parties,” he says, and “the majority of the expended time is devoted to exploring disputes, proposals, suggestions and possible solutions.”

Food for thought!

I’ll explore mediation in greater depth over the coming months.

New York City- and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin, Esq, helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com or (718) 229-6149, or visit lc-mediate.com/home.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice. Discussing your particular case and circumstances with a legal professional before making important decisions is strongly encouraged to safeguard your rights.

Updated 4:38 pm, December 9, 2016
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