Is Mediation For You?

REASONS TO CHOOSE MEDIATION

     Mediation is inherently a more harmonious and less angry way to identify, explore, and resolve the practical and legal issues that arise when a family is in transition.  As the people who will live with the terms of an agreement forever, you control all aspects of the mediation, including the speed with which the process occurs, the content of all agreements reached, or even the decision not to make an agreement.
               
     Mediation is generally less expensive than hiring lawyers for any family law purpose: whether to obtain a divorce; apply for an order of custody or child support; or ask a judge to enforce or change an earlier judgment or order.  Mediation can resolve all those issues and is also a perfect process within which to negotiate a prenuptial agreement, a postnuptial agreement, or a domestic partnership agreement.

     If you go the way of court proceedings, a judge will decide when and how your case proceeds, with both parties paying the fees of separate lawyers who are trying to persuade a judge that you should “win.” This often results in an outcome that makes both sides unhappy and which continues conflict for many years hence.  In mediation, you create your own solutions, tailored to your own particular needs.

 
CASES WHICH SHOULD NOT BE MEDIATED

     Mediation produces a fair agreement when both participants honestly engage on an even playing field.  Often family finances produce an imbalance of power such that one of you may have more control over and access to family assets than the other.  Jane insists that both of you share with one another a complete picture of your family’s finances.  At a minimum, she will ask each of you to identify all assets, debts, income and expenses.  If necessary, she will also recommend that you share the tools to interpret this information in a meaningful way.  Occasionally, she will ask each of you to fill out the long “net worth statement” that would be required in every contested divorce in New York. 

     Jane also screens for issues that may adversely affect the dynamic of open, free conversation in mediation about all issues.  Current or past domestic violence can preclude a fair mediation process if one of you fears speaking openly.  Untreated alcohol or drug abuse, or serious  mental disorders may also prevent effective mediation if one of you is not able to make thoughtful, informed decisions.

     Jane encourages you to discuss any reasons why you or your partner might not be able freely to voice your ideas and concerns during mediation, or why either of you might not be able to reach a rational solution.  Jane spends a portion of the initial mediation session allowing any such concerns to be aired.  If either of you needs to speak privately to her about these issues, she will permit you to do so.  In the event she has reason to doubt your ability to mediate with full decision-making capacity, she may decline to begin mediation or may withdraw as your mediator.  In such event, she will suggest alternative processes for you to try to achieve your goals.              
               
OTHER OPTIONS IF MEDIATION IS NOT FOR YOU

     Either or both of you may hire a family law attorney to represent you, whether in negotiations or in a court proceeding.  Some people choose lawyers who are known as “collaborative lawyers” and who pledge at the beginning of their representation of you not to go to court on your case.  If both of you commit to collaborative law, your respective lawyers will not use the threat of court proceedings as leverage in the negotiations.  If negotiations in collaborative law are ultimately unsuccessful, however, you would have to hire a different lawyer to go to court for you. 

     Jane’s years of experience as a trial lawyer have taught her that sometimes litigation is necessary.  Where one side takes an inflexible and unreasonable position in negotiations, where there are child protective issues, or where there is financial hanky-panky, litigation is the often only tool to shift the dynamic and to steer the case towards a fair resolution.  Jane feels it would be unfair to a client for her to have to withdraw from representation in the event that good faith negotiations failed to produce an agreement.  Therefore, she has not joined a collaborative law group.