By Robyn D. Weisman, Esq. January 7, 2016
I have been handling divorce cases either through litigation or mediation for over 30 years and I have been privy to so many incorrect rumors or “myths” about mediation. As an attorney who has had quite a bit of Courtroom battles in the divorce arena and has chosen to forego those horrible battles and built a thriving mediation practice, I must now crush those myths and describe why the mediation process is a much more desirable approach to a couple than maybe you have heard.
First, I am sure by now if any couple has researched the various avenues to obtain a separation or divorce, the process of collaboration or mediation has entered the picture. What is the difference? In a collaborative divorce, like mediation, the process is done outside of the courtroom until the papers are filed. Unlike mediation, both spouses hire attorneys to represent them and they enter into an agreement to stay out of court. During a series of “mediation” type sessions where all parties are present, as well as in certain circumstances, accountants, financial managers, therapists, and mediators, the parties negotiate through the various issues presenting the couple. This type of scenario is much more costly than mediation and sometimes can even be almost as much as a Courtroom battle. When collaboration is done correctly, as I have seen in States outside of New York and also in upstate New York, it can be helpful to a couple and provide a little more hand holding to each spouse.
What is different about mediation? The mediator works with the couple without attorneys present, avoiding the cost of retaining attorneys. It also gives the couple a chance to “vent” or voice their own concerns as they go through this difficult process without having an attorney to speak for them and who often will argue for things the parties actually do not even care about. Of course in mediation, either party may speak with attorneys, accountants, therapists, whoever will aid them in their decisions. In my mediations, I always recommend individual attorney review once the agreement is drafted, as someone to just even bounce the agreement off of and for a second set of eyes.
A mediator has no power over the decisions. Working with a mediator gives you control over your agreement and the issues such as parenting, what to do with the house, retirement benefits etc. It is the mediator’s job to work through the issues that the couple does not agree on.
The benefits of mediation are significant. The lower cost and time, as well as the ongoing communication between the parties, especially for those who are parents make mediation such a preferred alternative.
Another “myth” I often encounter is: if I hire my own attorney I am more likely to end up with a better agreement. No one wins in a divorce. The only people that get enriched in a litigated divorce battle are the attorneys. The amount of money spent on litigation will deplete the savings or college funds a couple has worked so hard for. Furthermore, very often the attorneys will advise their client not to communicate with the other spouse. This is horrible advice when the clients are parents. Communication is key to parenting. Through mediation, communication throughout the process is encouraged merely by the fact that the parties are coming to agreements in the same room together. The parents are deciding together how the parenting plan should work now and in the future, and in doing so are more vested in the outcomes. It’s impossible to co-parent their children when a couple is not able to speak to one another.
With the above being said, another misconception is that mediation would not work if the couple does not get along. Going through a divorce stirs up a lot of different emotions: anger, resentment, fear, mistrust. Mediators, however, at least trained mediators, are trained to work through these emotions with a couple in an atmosphere of open communication. Both of the spouses concerns are heard and addressed. Both have a common goal, an agreement in place that the couple can live with for the long term.
Divorce mediation is a process wherein both parties are equally acknowledged and heard. It is a process in which a mediator makes a difficult time a little easier. Both parties work to gain their independence while at the same time working together to come to a mutually beneficial and respectful agreement. With the trained mediator’s assistance neither party will dominate the other party but instead will work together in a healthy fashion to secure their future.
The last common myth of mediation is that attorneys are not needed. Only attorneys can draft legal paperwork. Therefore, an attorney is needed to draft the agreement and legal paperwork needed to be filed. Furthermore, as I indicated, I highly recommend an attorney review of the agreement once drafted, especially when there are children involved. Even with the addition of an attorney scribe and/or review, mediation is still the least costly, less time consuming and most amicable way to obtain a divorce or separation.