Many couples contemplating divorce would like to try and reach an amicable agreement rather than engage in a nasty and protracted battle in a courtroom and they wonder if mediation might be a good choice for them. This blog has previously discussed mediation and collaborative divorce as alternatives to litigation. If you are interested in divorce mediation, here are 8 helpful questions to ask:
1. What is the mediation process like?
Both spouses sit down with a trained family mediator who will help them reach agreements on all of the issues that need to be resolved. They speak with each other directly throughout the process and exchange all necessary documents. Both spouses will have specific interests that need to be met. The goal of the mediator is to help each of them find solutions that meet those interests. Both sides need to be prepared to work together in a civil manner.
2. When does the mediation start and how long does it last?
The mediation starts as soon as both spouses are ready to start, and it can last until all issues are resolved. Parties don't need to wait for a court-assigned date the way they would if their case were being litigated and they can meet with the mediator as often or as infrequently as their schedules allow. While some New York courts have implemented mandatory mediation programs, most mediation is strictly voluntary.
3. Will I need my own attorney?
It is strongly suggested that each spouse consult with individual attorneys before and during the mediation process so that they fully understand their rights and obligations and can discuss with the attorney the different settlement options that are being proposed. It is also important that each spouse's attorney review the settlement agreement before it is signed.
4. What issues can be resolved during mediation?
Mediation can be used to resolve any issue involved in a divorce, including child support, spousal support, child custody and the division of property. A divorce mediator can help the parties to find creative solutions that could be impossible to achieve in court.
5. What type of training does the mediator have?
While there are no state requirements for New York mediators, family mediators who are also divorce attorneys, usually have several years of family law experience. Mediators are not required to have a legal education, but a mediator who is also an attorney has the advantage of being very familiar with the law and understanding the rights of both parties. He or she is also able to draft a legally binding settlement agreement that contains all of the terms that the parties have agreed to.
6. What if my spouse knows much more about the finances than I do?
The key to a successful mediation is that both spouses are on equal ground. If you feel insecure about financial issues, you may want to consult with a Certified Divorce Financial Analyst who can educate you on your current financial situation and help you understand what you need for your future. CDFA's will use their knowledge of tax law, asset distribution, and short- and long-term financial planning to help you achieve an equitable settlement.
7. What are my other options if we can't reach an agreement through mediation?
While you always have the option of asking a court to resolve these issues for you, you may want to consider the collaborative divorce process before going the litigation route. In a collaborative divorce, you will always have an attorney with you during the negotiations who can advocate for your rights and interests and articulate your goals.
8. Could anything said during the mediation be used against me in court?
If you sign a confidentiality agreement with your spouse and mediator, the answer is probably no. That agreement needs to specify that all statements are considered privileged communications and cannot be used in court.