MEDIATION
Mediation is a party-led dispute resolution process that empowers couples to make choices for themselves.
In mediation, couples work with a neutral third party (the mediator) to reach an agreement. The mediator helps the parties communicate with each other to generate options for resolution and ultimately to assist them in reaching agreement. Mediation is typically a more cost-effective and collaborative alternative to a more traditional adversarial process where parties negotiate an agreement through their respective attorneys or litigate against one another in court.
Mediation can be used to resolve a variety of family law matters:
Prenuptial Agreements
When a couple is getting married, they could use mediation to arrange the terms of their prenup, finding creative solutions to determine and delineate property, handle business interests, or arrange for housing in the event of death or divorce.
Separation Agreements
For some couples, separation as opposed to divorce makes more sense for their family. Mediation can help the parties generate options for how their separation will look as it relates to finances, insurance, housing, and other considerations.
Fertility-Related Contracts
Prospective parents and their gamete donor or surrogate could mediate the terms of their contract. The mediator could help the parties work together to determine involvement and responsibilities both before and after childbirth.
Postnuptial Agreements
Sometimes after a couple marries, their lives and finances develop in such a way that they would like to enter into a postnuptial agreement, which would determine the division of property in the event of death or divorce. Mediation is an excellent option for married couples to work together in making these decisions.
Parenting Agreements
Mediation can provide separating parents with greater flexibility to devise a parenting agreement that works for their family moving forward. Mediation provides a forum that will take into account parties’ specific circumstances, such as family traditions, in a much more detailed and personal way than is possible in a court-involved context.
Grandparent Visitation Agreements
Under New York law, grandparents have certain rights for visitation with their grandchildren. Mediation between parents and grandparents could allow them to work together to define what this looks like for their family.
Divorce Agreements
At the end of a marriage, a couple can use mediation to create their divorce settlement agreement. In doing so, the couple is able to come up with solutions that the courts would not, providing the couple with opportunities to contract around the specific circumstances of their marriage.
Who should mediate?
Mediation is best-suited for people who share mutual respect and transparency about their goals, equal bargaining strength, and a commitment to reaching an amicable resolution of their dispute outside of court. This does not mean that the relationship is without conflict; simply that the parties are interested in reaching a mutually agreeable solution to their common problem or problems.
Mediation is not recommended where there is a history of domestic violence or a level of hostility that will preclude the parties from working in a cooperative manner, or where there is a power differential that makes advocating without the help of an attorney difficult.
OUR PROCESS
There are numerous ways people come into mediation and many different ways in which parties may structure the process to suit their unique needs.
Some people are court-ordered into mediation after litigating. Some are sent to mediation by their lawyer, while still others independently opt into mediation and seek a reviewing attorney to guide them through the process.
The parties to a dispute may determine that they want to engage the services of a mediator at any point in the course of their dispute. However, once they have entered mediation, they will work with the mediator to generate creative solutions that address everybody’s underlying interests.
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Whether negotiating a prenuptial agreement or dissolving a marriage through a divorce, the parties to a dispute have decided they want the flexibility and attention to detail afforded by mediation.
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Although it is not mandatory, it is advisable that both parties to a mediation hire a reviewing attorney. A reviewing attorney is retained by an individual to help guide him or her through the process. Unlike the mediator, a reviewing attorney is an advocate who will advise as to each issue with the goal of protecting his or her client’s interests.
A reviewing attorney may be hired before mediation begins to guide the parties throughout the process, or after the agreement is reached to review its terms. Involving the reviewing attorney early can help the parties navigate the issues as they arise; the reviewing attorney can provide the client with insight as to what the law provides and how a court would likely rule so that the client can make informed decisions. However, it is essential that the parties hire reviewing attorneys who will honor the creative and collaborative nature of the mediation process.
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The first mediation session begins with the mediator listening to both parties and identifying the issues that need to be resolved. The mediator will outline the issues for the couple and seek their input as to which issues they want to address first. For example, a newly-separated couple with young children might want to begin by resolving a parenting schedule before moving onto their financial issues. For others, they might find it more urgent to first resolve certain financial issues first. The mediator provides the parties with legal information but does not provide legal advice. Reviewing attorneys provide legal advice to their clients.
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The mediator walks the couple through the disclosure process, and together they decide upon the level of disclosure with which the parties and their reviewing attorneys feel comfortable in their mediation.
Sometimes, it is important for each side to have comprehensive financial disclosure of the other party’s assets, liabilities, income, and interests in irrevocable trusts. In these cases, we typically disclose assets that are in the client’s own name; additionally, we disclose if the client is the beneficiary of an irrevocable trust and knows the terms and assets of that trust. In other cases, this level of disclosure is not necessary.
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Mediation sessions ordinarily run from 90 minutes to two hours long. The process is flexible and guided by the parties’ preferences. Sessions may occur in person or online. Reviewing attorneys can be present, but they need not be. Parties choose in what order to discuss the issues and the speed at which they wish to move through them, with sessions once weekly or monthly, for example.
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Following each session, the mediator sends the parties a memo summarizing what they have agreed upon and what remains to be discussed. The parties have an opportunity to agree to or amend the terms. If parties are working with reviewing counsel, they will discuss the memorandum, which documents the agreements reached with him or her.
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Once the parties have reached a resolution as to all outstanding issues, the mediator will draft an agreement.
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After both parties have provided their comments to the agreement and all agreed-upon revisions have been incorporated, the agreement can be executed. For parties who are divorcing, the mediator may also draft and prepare all of the requisite divorce documents to be filed with the court.
MEDIATORS
The mediation practice at Rower is committed to helping parties chart their own path forward. Our mediators have successfully and thoughtfully mediated prenuptial agreements, divorce stipulations, separation and parenting agreements, and fertility law contracts. In addition to the firm’s mediation practice, our attorneys can serve as reviewing counsel, supporting individual parties through mediation.
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Our mediators are compassionate counselors and creative problem solvers who work tirelessly to find solutions that work for your family’s goals.
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This material is provided for informational purposes and does not constitute legal advice or establish an attorney-client relationship, which may be established only by a writing signed by the lawyer and the client.