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Is mandatory mediation a good idea?

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The Jerusalem Post recently published a piece entitled, “Mediation and the law: The advantages of mediation are manifest.”

Why should we be interested in another country’s mediation matters? Because the major question raised is as valid for New Yorkers as it is for Israelis.

The piece begins:

“A law has been passed in Israel that will … require couples to try mediation before they can obtain their divorce through the courts.”

In the United States, a requirement to engage in mediation is often referred to as mandatory mediation. Numerous states have such laws when it comes to divorce-related issues such as those involving “custody-visitation.” New York is not one of them.

The author explains the definition of mediation: “Mediation is a form of resolving disputes by using a neutral third party to try to help the parties to come to a resolution, which has to be voluntarily agreed upon. Within this wide definition there are many forms.”

Should mediation be mandatory in New York? Obviously, opinions vary. Many, though by no means all, New York mediators are in favor. I am not.

What I am in favor of is clients having all the necessary information so that they can make their own informed decisions. Rather than forcing them to try mediation (which is often touted as voluntary) for two or more sessions, they might be asked to participate in a free informational session, in person or online, say for 90 minutes.

Does that sound burdensome? Maybe it is. But consider that if you have divorce papers served on your spouse, or vice versa, you are going to court — maybe many times.

In such a session, you would learn about the different ways to divorce:

Mediation. How the process works; advantages; monetary costs; time to complete; who is likely to benefit and who is not a good candidate; impact on children; experts who might be helpful, and what the role of each would be; the legal steps that follow mediation; what the probable effect will be on future communication between you and your spouse/ex.

Collaborative divorce. I’ll leave you to read my previous articles on this subject, available on nyparenting.com.

Litigation. What happens in court? How long might the process take? Costs? When might social services get involved, and what are the possible consequences? What does a “lawyer for the child” do? A forensic psychologist? What are depositions? What impact does conflict have on children? How well can you expect to communicate with your ex after the divorce?

Do you think you already know what you should about litigation? From what so many people who have gone to court have shared with me, I have to think that many of you don’t.

So, in my humble opinion, everyone going through divorce should have this information, provided in an unbiased manner, before going through one of the most difficult experiences that most of us will ever face. Then you would be better able to decide how to go forward.

An enormous number of people in New York do not know what mediation, collaborative divorce, or even litigation really entails. That might be different if trial attorneys explained the alternatives to litigation to potential clients; but many don’t.

Which process should you avail yourself of? With information and time to consider, you can figure it out. Litigators shouldn’t make your decision for you by withholding or distorting what mediation is. Similarly, the government shouldn’t require mediation.

Will New York pass a law requiring mediation anytime soon? Probably not. Unlike in Israel, where “even the most hardened litigators are not often averse to [mediation],” many New York litigators are.

This is a big reason why even a much more modest plan to ensure that you are better informed about your options won’t become law either.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to http://lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.

Updated 4:59 pm, July 9, 2018
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