Would I Prefer Mediation For My Divorce?

Mediation is a process where you and your spouse will sit down with a neutral person who will help you, sometimes with and most often without attorneys present, to negotiate the terms of your divorce.

Mediation is non-binding until its conclusion, at which time a contract reflecting your agreement will be signed.

Most mediation clients engage attorneys for at least part of the process. Some consult with attorneys before entering mediation, and others do not consult until the terms of the agreement have been substantially worked out.

Many of my cases are with families with modest assets who could not afford, in any case, to have attorneys negotiate for them. I worked with a couple who had had lawyers negotiating for them for 1 ½ years, and they had spent $70,000 in legal fees! Unless you are very wealthy, or are so angry that you want to use the divorce process to destroy your spouse (and yourself), you will probably not want to enter such a process.

Do Mediated Divorces Reflect the Law?

During the course of mediation, you will get information about the law. In the course of my practice, I do legal research, but from a more balanced perspective than adversarial attorneys would do it. I am not making an argument for someone, searching for a particular result – just trying to understand the state of the law on a particular issue, so that I can explain it to my clients. As an attorney-mediator, I provide legal information without giving legal advice. This means that I will discuss, for example, the statute governing maintenance (which is what alimony is called in NY state) and the factors a judge would consider in deciding whether to award the non-monied spouse maintenance, and arguments which their attorneys would make were they representing them in court, without advising either of you to give (or not) or demand (or not) maintenance.

But mediation can also give you the freedom to shape your own divorce. You don’t have to follow every detail that the law provides. For example, the state of NY considers an advanced degree earned by one spouse to be the marital property of both. I worked with a couple where the husband had gone to law school during the marriage, but both of them agreed that they did not believe that the husband should pay the wife for his law degree. She also had an advanced degree, which she had completed before the couple had married, but when they were together. In addition, she earned more money than he did. Because they were mediating their divorce, they were able to shape an agreement that matched their person standards of fairness.

Mediation can also provide non-economic benefits that the legal system could not. I had another case where the wife knew, and was able to express articulately, that the husband had assets in excess of what he admitted to owning once the battle began, and she knew (and her attorney informed her that) it was likely that, after an extended battle in court, she might achieve a $1 million settlement. But she wanted very much to leave the marriage quickly. Their children were already suffering. She wanted them to begin to develop new coping strategies for their changed life so they could begin the healing process from the divorce. She also felt that, throughout the marriage, the husband had put more time and energy into his business than into the family, which was part of the reason the marriage failed. She decided to accept a $500,000 settlement to achieve her goals of resolving the divorce quickly, letting her husband know, in a concrete way, that she did not share his belief that money is the most important thing in life, and to get quickly to the point where she could focus on shaping her and her children’s future life.

At first blush it appears that she accepted one-half of what she would have gotten in court. But we must subtract out the substantial legal fees which would surely have been incurred – perhaps $75,000 (and that may be a modest estimate) for the wife’s fees, as well as at least a 2-year wait for the money. The husband in this case was a very sophisticated fighter, and had the money to hire a top-notch attorney, and the wife was aware of the kind of fight which would ensue if she had gone to court. A more accurate estimate is that she accepted 2/3 of the settlement in order to have it resolved immediately. Mediation allows people to act on non-economic motivations, such as this wife wanted to do, including the desire to reject the husband’s money!

Is my case appropriate for Mediation?

If either you or your spouse has been violent, or if there is suspicion that one person has hidden substantial assets, you would be better off going to traditional attorneys. Mediation requires full and complete sharing of information in order to have an even playing field and the ability to fully participate in negotiation.

The Benefits of Mediation

The brainstorming phase of mediation allows parties to think creatively about how to resolve problems. A couple was splitting the equity in the house 38-62 (rather than 50-50) because one person had put in a lot of sweat equity. They had a disagreement whether to divide the mortgage and costs equally, or according to their agreement. One of them proposed, “The costs incurred during the marriage, let’s split equally. The costs incurred because of the divorce should be split in the proportions of the divorce settlement.” I could not have come up with a more fair way to divide those costs myself.

Mediation can give even divorcing parties a new and better understanding of each other. A wife insisted that she take the tax deduction every year for their 2 children, even though she earned ½ of what her husband earned, and would therefore be paying less of the children’s expenses. The husband argued that this arrangement was unfair to him. Initially, I agreed with him (privately). With two children, they could have easily split the tax deductions — but I asked her why she didn’t want to divide the deductions.

She answered, “I feel terribly betrayed by this man. He promised to stay with me for the rest of his life and now he has changed his mind. He is promising to take care of his children in the future, but I fear that he will again change his mind. If he stands by his promise to provide for and care for the children, in 2 or 3 years I would be willing to give him some of the tax deductions.”

The husband heard this from his wife and said, “OK, that’s fine with me. She can have the deductions.” I said, “Do you want to put into the agreement that you will reconsider this a couple of years down the road?” He said, “No. I trust her.” The wife’s eyes widened in surprise at this acknowledgement by the husband.

Am I engaged in the battle of the divorce, or do I want it to be over?

I met with a couple who had worked with adversarial attorneys for a year and a half, and spent $70,000 in legal fees, and they could not answer the questions, “What do you want? What do you need?” Every time I asked one of these questions, the answers I got were, “My attorney said this , . . . the Family Court judge said this, . . . the Supreme Court judge said that, . . . that forensic psychologist said this . . .” I had the sense that this couple was very engaged in the war, and that they were as intensely involved with each other through this divorce as they had been during their marriage.

Mediation helps you to shift your focus from the painful years leading up to your separation and divorce, toward figuring out what you want your future life to be. But you have be ready to let go of some of the anger, in order to begin this process. Most of the couples with whom I mediate are actually eager to separate and detach from each other. If they are not, the litigation process will work better for them.

                       

Rachel Fishman Green

Rachel Fishman Green, Esq. is an attorney who runs ReSolutions Mediation Services, based in Park Slope, Brooklyn, since 1995.  Rachel is the Chair of the Joint Ethics Committee of the New York State Council on Divorce Mediation and the Family & Divorce Mediation Council of Greater New York, which accepts and… MORE >