Divorce mediation saves thousands of dollars and helps former couples successfully raise their children in peace.
GOAL OF DIVORCE MEDIATION: The goal of divorce mediation is usually to work out a separation agreement for a couple. The couple usually retains a divorce mediator/attorney together and split the expenses.
EXPECTATIONS OF THE MEDIATOR: The couple is usually expected to pay a retainer, which may range from a few hundred dollars to several thousand dollars depending on the complexity of the case and sign a retainer agreement when the couple initially meets with the attorney. This is standard practice. In fact, a retainer is required by the Lawyer’s Code of Ethics. You are entitled to fully understand the retainer agreement and ask your mediator about it before you sign it.
PROCEDURE/SETTING: The couple usually meets at the attorney’s office and avoids the stressful atmosphere of the courtroom. The divorce mediator will usually explain the rules of engagement at the first meeting. The mediator will explain her hourly rate and what that rate includes.
HOURLY RATES FOR ATTORNEY/MEDIATORS: The hourly rates for Attorney/Mediators range from $250 an hour to $450 an hour. My firm charges $250 an hour and sets a cap on the overall price for the mediation, which is never exceeded.
THE FIRST MEETING: I usually explain the mediation process to my clients at the first meeting. I go over the law with respect to divorce, child support, and maintenance with you. I acquaint my clients with the statutes themselves. I always give my clients a copy of the applicable statutes so that they can study the rules for themselves. This gives them a great edge in understanding their own mediation process. I generally send the couple home with the statutes and ask them to assemble important financial information for our next meeting and to work out a visitation schedule if they have children. This usually involves looking at their schedules and a calendar for the school year, which sets forth the various school holidays.
SECOND MEETING: At the second meeting, I usually ask the clients about their circumstances. We talk about the number of children they have, the custody arrangement they would like to see, and a visitation schedule. The issues the mediation generally covers include: the division of marital property, i.e. equitable or fair distribution in New York, what property is considered “separate” property and can be kept by each party. We discuss the test for child custody in New York (Test: The best interest of the child) and the factors courts consider to determine residential custody. We discuss visitation preferences and the couple’s schedule. We talk about health and life insurance. We discuss the respective circumstances of the couple to determine whether either spouse would be a candidate for spousal support (maintenance, once known as alimony).
The couple usually has a lot of questions, which I answer. If I do not know the answer to a legal question, the couple can commission a legal memo to get an idea of how the courts are currently handling the issue that concerns them. In this way, they have a context to determine whether or not a proposed solution to a problem is fair.
PROCEDURES IN GENERAL: Each member of the couple is given an equal chance to speak. I usually allocate a specific amount of time for each spouse. During that time, the other spouse is directed not to interrupt their partner. If it is in the couple’s interest, and they agree, I talk to each member of the couple separately. If one spouse is given private phone time, the other spouse is usually given equal time.
THE MEDIATOR’S ETHICAL OBLIGATION: A mediator must act neutrally and cannot favor either side when mediating a separation agreement. If one member of the couple decides not to mediate, the mediator cannot represent either side in a divorce since this would be a conflict of interest. The separation agreement cannot be grossly unfair or it can be stricken down by a court. Since this is the rule of law, couples can be confident that a given mediation agreement cannot be lopsided.
HOW LONG DOES THE MEDIATION TAKE?: The mediation itself usually takes about one to two hours a session. Several sessions are usually required. I often ask the couple to fill out a “net worth statement” when they go home after the first or second meeting (The courts require this during divorces. This statement sets forth the respective financial circumstances of each party.) to get a basic idea of the assets involved in the
marriage and their appropriate distribution. I also often ask the couple to provide independent proof of salary, bank account, and pension information just as a Court would. In this way, both partners can be assured that financial figures have a basis in reality.
ARE THERE SEPARATE COSTS OR APPRAISALS? It may be necessary to appraise certain marital property during mediation. For example, the marital home may have to be appraised. Pensions may have to be appraised. In some instances, degrees earned during the marriage may be considered marital property and need appraisal. These charges are separate and not included in the mediation costs. These appraisals are conducted by independent experts. Sometimes couples choose to place a value on their assets themselves. The couple may also be asked to pay for filing costs, which are not very expensive.
DRAFTING A SEPARATION AGREEMENT. Once the mediation is complete, the mediator drafts the separation agreement. I always send it out to the couple. The couple reviews it to make sure it reflects their wishes. The mediator may identify additional issues that need to be tackled and call the couple to discuss these issues over the phone or ask that they return for another session. Each member of couple can seek independent legal advice before signing the separation agreement. In fact, mediators often encourage this. Once each party signs the separation agreement it is binding upon him or her. New York law requires that the couple live pursuant to the agreement for a minimum of one year. At the end of the year the separation agreement can be converted into a divorce if and only if the couple has abided by it for the full year.
ARE YOU DIVORCED ONCE YOU SIGN A SEPARATION AGREEMENT? For most practical purposes, you are as good as divorced once both sides sign a separation agreement. A separation agreement essentially contains what a divorce would contain, including division of marital assets, division of debts, where each spouse will live, determinations of what is separate property, custody of the children, visitation schedule, and maintenance (if applicable), and child support. However, there are a few exceptions to this rule. For example, you obviously cannot remarry during the year of separation. Should you die during the one year separation, your spouse may still inherit as though you were married. Your spouse may still be able to collect health insurance benefits, depending on your policy, until the divorce. Of course, if you don’t live up to your side of the agreement, you can endanger it.
ISSUES HANDLED DURING A MEDIATION: The separation agreement handles the following issues: child support, custody, visitation, health insurance, life insurance, a division of marital assets and debts, and possibly, but not necessarily, spousal support. The couple can mediate any issue that concerns them.
ADVANTAGES OF MEDIATED DIVORCE OVER LITIGATED DIVORCE: A mediated divorce has tremendous advantages over other approaches to divorce, such as a
litigated divorce, which tends to be much more expensive and contentious. See my article on this web site concerning the various ways to divorce in New York. [Place hyperlink here to “Ways to Divorce in New York State]
The above article represents my opinion only and should not be construed as legal advice. A couple should still seek the skills of an attorney/mediator to determine how the law will apply to them given their individual circumstances.
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