Using Mediation to Advantage in a New York Divorce?

Most contested divorces and child custody matters in New York are now referred to mediation: a structured but informal environment where spouses can discuss their issues, negotiate and potentially reach agreements without the need for trial.

Known as “presumptive mediation,” this forum is based on the state court system’s general policy favoring alternative dispute resolution of civil cases. At the preliminary conference or later in the case, judges and other judicial personnel will decide whether mediation is likely to work in the parties’ situation. The answer is usually in the affirmative unless there is a history of domestic violence in the relationship. Once mediation is deemed suitable, the parties’ attorneys can select a mediator or the court will appoint one from a list of approved candidates.

As in private mediation, the court-appointed mediator acts as a neutral third party and facilitates discussion. If the parties are represented by attorneys, the mediator may schedule a pre-mediation call and request that certain documents be provided prior to the first mediation session. The first 90 minutes of mediation are generally offered free. The mediator then charges hourly for additional sessions if the parties wish to continue in the mediation process. Lawyers are present during the first session and the parties have the option to request their lawyers’ participation at subsequent sessions.

Although presumptive mediation might be looked upon simply as a necessary phase in a matrimonial case, it can actually serve positive purposes if given a chance. These are among the possible benefits:

• Speed of process — Once a mediator is selected, the sessions can be scheduled right away and might be completed within a few days, compared with the months that a trial can take.
• Cost-effectiveness — The speed of mediation makes it less expensive. It also can avoid many of the costs associated with the pre-trial and trial phases of the case.
• Versatility — Mediators have several tools at their disposal to work out compromises. Disputes can be isolated, prioritized and discussed individually, which can make resolution simpler.
• Confidentiality — Information shared in a mediation is privileged. The parties can freely discuss issues without worrying that their statements will be used against them in court.
• Control over the outcome — The parties themselves are in charge of working out a settlement that becomes part of the final judgment in the case.

Even if mediation does not resolve all disputed matters, it can educate the parties about the relative strengths and weaknesses of their positions. This can help bring the parties closer to a negotiated settlement. At subsequent court conferences, the judge can continue to explore potential settlement options and to limit the issues that need to go to trial.

At the Law Offices of Randy S. Margulis & Associates in Amherst and downtown Buffalo, we provide mediation services in family court matters for residents of Western New York. Contact us online or call 716-886-9600 to schedule a free initial consultation.