MEDIATION

In divorce mediation a neutral and trained third party helps the disputing spouses arrive at a mutually acceptable final settlement of their own design. In general, agreements made during mediation are embodied in a Memorandum of Understanding, which form the basis for the parties’ attorneys to prepare a Separation Agreement. The Separation Agreement is then incorporated into the Divorce.
Unlike an arbitrator, a mediator has no decision-making powers. Furthermore, he/she cannot compel the parties to accept a particular settlement – or even to continue mediating their differences. His/her role is essentially that of a facilitator.

When parties enter into mediation, they implicitly agree to replace their lack of trust in one another with a mutual confidence in the mediator’s ability to help them reach a fair and mutually acceptable agreement.

The steps entailed in a successful mediation can be divided into three phases and summarized as follows:

Phase I:

• Husband and wife agree to negotiate in good faith in hopes of achieving a mutually acceptable agreement.

• Both parties interview and eventually agree upon the selection of a mediator.

• Both parties agree on the issues that will be resolved in the process and sign an agreement drawn up by the mediator that spells out the ground rules.

Phase 2:

• The mediator works with the spouses to create a climate in which husband and wife both feel free to express their respective points of view.

• Each party learns to hear and acknowledge the other’s wants and needs.

• The spouses begin to understand and respect the differences between their separate and common interests.

• Both parties become more interested in a collaborative solution than in their own self-serving agendas.

Phase 3:

• The parties reach a mutually acceptable agreement that is reviewed by their respective attorneys.

• Both spouses feel a long-term commitment to live up to the letter and spirit of the agreement.

A couple, must be careful in choosing a mediator. Neither New York nor virtually any other state licenses mediators. Most mediators are attorneys, mental health professionals and others specifically schooled in conflict resolution. However, anyone without any qualification or training whatsoever can call themselves a mediator. Unfortunately, this has led to abuses and parties being harmed by a use of unqualified mediators.

Before you enter mediation, you should consider:

1. What issues remain to be resolved?

2. Do you feel that you and your spouse can be fair-minded for the sake of your children’s long-range interests?

3. Will you be able to trust yourself and your spouse to live up to a collaborative agreement of your own design?

4. Can you work with your spouse in selecting a mutually acceptable mediator?

5. Does your attorney feel that mediation is a viable option?

6. Will you be able to trust the mediator to be fair to both sides?

7. Will you and your spouse be comfortable with a process that emphasizes cooperation and compromise rather than winning or losing?

If the two of you can honestly answer yes to most of those questions, you may be candidates for mediation. Should you decide to employ this option, you and your spouse should still retain the services of separate counsel from whom you can obtain advice and guidance during the process of the mediation.

The mediator’s Memorandum of Understanding does not usually cover every detail that is encompassed in a Separation Agreement, and it is your attorney who should draft the Separation Agreement.

Divorce mediation handled appropriately may be able to reduce the emotional trauma of divorce and should explored as a possible option in appropriate cases.

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