When mediating, a couple meets with a NEUTRAL mediator to discuss and resolve all the issues required to finalize a Separation Agreement or Stipulation of Settlement. A document is drafted to secure the agreement, and that document becomes the Divorce Judgment, after the parties have had it reviewed by separate independent counsel to ensure its enforceability. The couple never needs to appear in court.
When mediating, I do not represent either spouse against the other (unlike in collaborative practice (“CP”) or in traditional matrimonial practice (“TMP”)). I also do not make decisions for the spouses (unlike in Arbitration or TMP). Final decisions are made by the people themselves once they understand the issues and the law. Fees are usually paid out of marital funds. Fees are almost always substantially less than in CP or TMP, even when one includes the review attorney fees.
As a mediator, I do my best to explain the issues and the law to both people, sitting together in the same room at the same time, in the most plain vanilla way that I can. Usually, I give a range of options that might be considered reasonable, given the case law and the statutes. It is important that both people understand what the relevant considerations are and what the picture will look like 2, or even 5, years down the road. Often, even seriously hostile couples understand and accept that the other person has to be able to live in a reasonable way, and that there is not much point in trying to “pull one over on someone” because the mediator will ensure that BOTH people understand what is going on.
There is great flexibility in mediation. Some couples come in 3 weeks in a row and they are finished; they were probably people who have been separating for one or more years, and have perhaps had practice with a parenting schedule and a way to run their finances. They know what works and what doesn’t, they only need outside parties to help them with the few things that have been problematic. They don’t need judges to tell them when they can see their own children.
Some couples mediate over a period of years. I had one couple with me for 4½ years, during which time their children both finished college and the husband, who had had an affair, was treated for a life-threatening illness. They came to me about once every 6 months, and finally were ready and completed the negotiation in 2 sessions. The entire process did not cost them very much, and they were able to take care of their children’s needs and their own over a very rough 5 year period. They did it with minimal financial drain, and a solid agreement about college debt. DAMAGE CONTROL.
Elaine Kirsch, Esq. 