Long Island Family Law and Mediation Blog
This blog is Part 4 of my divorce mediation bullet point series. It looks like there will be a couple more to go to 
continue my summary of my divorce mediation blogs from over the years.
53 – Neutrals can be utilized in divorce mediation to get past sticking points or to help resolve certain issues that agreements need to be made to be able to obtain a settlement on all the issues involved with the dissolution of the marriage. For example, a neutral child specialist, such as a psychologist might be brought in on a mediation to resolve parenting time issues. Financial neutrals, such as accountants or certified financial planners might be used to work with the couple on budgets and how they can transition from one household to two. Appraisals for homes, valuations for business and other aspects can be done by neutral third parties. Many options are possible in mediation. There is no one set in stone formula for how we can solve problems and move forward.
54 – While mediation might be difficult in ultra high conflict situations, such as where there has been domestic violence, there do not have to be hard and fast rules. If both sides are willing to sit in a room with neutral divorce mediators it might be possible. Because of the potential of imbalance of power that may exist in such a situation, it is particularly important for the parties to utilize review attorneys to advise them about the divorce to ensure that there rights are being protected. I don’t believe that there needs to be a per-se exclusion for a couple from using mediation.
55 – Traditionally, and most frequently, divorce mediators, like myself, mediate with both the husband and wife together at all times. The premise behind this structure is to help maintain neutrality and the confidence of both sides that the mediator is in fact neutral and not conspiring with one side over the other. However, there may be situations where one on one meetings could be helpful. This is called caucusing. It might be used to provide space from a particularly tense topic or as a strategy to get past a seemingly impassable point in a mediation, If there would come a time to mediate by caucus, this is something that I would being willing to try, upon the consent of both parties only. Ground rules about the sharing of information would need to be agreed upon before caucusing would be used, if at all. Caucusing is just one of another out of the box techniques that could be used to try to solve problems in mediation.
56 – The initial consultation for mediating couples should be done together. If a couple is interesting in using me to be there divorce mediator then the first appointment should be scheduled together with their spouse. For a couple that is going to mediate, I like to ensure that I have not had a one on one consultation with either side prior to meeting with the couple together. In the rare instances where I have had a brief talk with one side and that person then wants me to be the mediator for the couple, I will make sure that the person I spoke with agrees and understands that we would share with the other side the details about what we talked about one on one before deciding to invite the other side to mediate with us.
57 – Different options regarding the marital home can be worked out in divorce mediations. Different options include one spouse buying the other out of their share of the residence. Alternatively a sale of the house and division of the equity can be the solution. Considerations might include: credits for paying down the mortgage; separate property credits if any; should there be some type of reward if one spouse waits to receive their share of the equity. All these issues and more can be explored and agreed upon in mediation.
58 – From mediating to getting a judgment of divorce, there are a few key pieces needed. A divorce mediator that both the Wife and Husband are comfortable with needs to be selected. Each side is recommended to consult with their own independent review attorneys behind the scenes. Some individuals take me up on this advice while others do not. A drafting attorney for the settlement agreement and uncontested divorce papers needs to be utilized. A divorce mediator, like myself, can both mediate with the couple and draft the papers, but not all mediators are lawyers. In the event a non lawyer is used in divorce mediation then either one of the review attorneys or another matrimonial lawyer will need to be employed for the drafting.
59 – There are different processes for divorce. Divorce mediation is an alternative dispute resolution process that minimizes the emotional turmoil for the entire family. Litigation is an adversarial process that often involves mudslinging. The name of that game often seems to be building up your side and tearing down the other. Bad feelings often remain after such a process that does not need to happen in divorce mediation. Divorce mediation is often the most economical process to get divorced. It usually takes less time and the couple can share fees for the mediator. Divorce mediation can be the start of a new beginning for people that want to move in a new direction.
60 – Equitable distribution of marital assets and marital debt can be addressed in divorce mediation. All property from big (houses and retirement accounts) to small (furniture and personal property) that was earned or acquired during the marriage is generally going to be considered marital property subject to equitable distribution. Likewise, debt that was acquired during the marriage and used for marital purposes is also subject to equitable distribution. While equitable distribution sounds like equal distribution, it does not mean that. Equitable means what’s fair. In a mediation, the couple, with the help of their mediator decides what is fair or equitable. In a litigated case that gets decided by a judge, the couple loses that power. That’s the judges job. There are certain guiding principles that can be discussed in order to come to agreements on equitable distribution but the couple is free to make their own agreements. To repeat a point that I learned from my mediation training, mediation operation in the shadow of the law. What would happen in court is not what a couple needs to do in their mediation but it can be a useful guide.
Stay tuned for Part 5 in this divorce mediation bullet points series.