Resolving issues in a New York divorce through mediation is usually less expensive than asking the court to resolve them through trial. However, certain conditions are necessary to mediate matters like property division, spousal support, child custody, and child support. The primary condition that needs to be present is the ability to communicate. Sometimes a mediator is the very thing that can work to facilitate the communication necessary to resolve the issues needed to be agreed upon to legally separate or divorce.
Unfortunately, many relationships have broken down because of difficulties communicating. When a couple engages in deceit, threats, coercive behavior, or physical violence, the relationship may be too damaged to have a rational discussion of options, especially with regard to such matters as maintenance and child custody. Just because any of those aspects exist, does not mean it is impossible to mediate. As, it all starts with the willigness to try to mediate. Last week’s blog was about situations where mediation is worth trying, even in high conflict relationships. If one spouse is phsyically afraid of the other, because of prior domestic violence for example, it is possible that he or she may agree to things in the process of mediation in order to get away from the other spouse.
Couples that have a high degree of conflict or even abuse in their relationships may not be able to communicate with each other in a productive way, but instead they may communicate out of strong destructive emotions like extreme anger (anger is not uncommon with mediating couples or fear. In those cases, mediation is not a good option because peaceful negotiations are not possible. I should mention, that although past performance is not predictive of future results, I have seen a high success rate in resolving issues for the couples that have agreed to mediate. But today’s blog is about a case, not one of mine, in which at least one of the parties to a mediation had second thought afterwards.
In E.M v. M.M., the court considered a case involving a highly contentious divorce. The couple had two children. The wife/plaintiff had sued based on an irretrievable breakdown of the marriage. The defendant/husband admitted this. However, the plaintiff also wanted to vacate provisions of the parties’ written marital agreements, based on fraud, duress, and coercion by the defendant, as well as breach of fiduciary duty and unconscionability.
In retaining a mediator to help them resolve the issues that were the subject of the marital agreements, the couple had agreed that neither would call the mediator as a witness nor require production of the mediator’s records. The defendant pointed to the agreement with the mediator to oppose the plaintiff’s claims in the divorce proceedings. The wife responded that she’d signed that agreement under duress, that it provided her with almost nothing after 40 years of marriage, and that she had no money to retain an attorney to review it. She also claimed that the defendant bullied her into certain choices and that she was the victim of domestic violence and deceit while she suffered from cancer. She claimed that had she proceeded in court, she would have been awarded spousal support.
The plaintiff’s allegations were made more than two years after she’d signed the agreements. The court found, however, that the allegations didn’t sufficiently show she was a victim of fraud by the defendant or a breach of a fiduciary relationship. It pointed to the facts that two months after the first agreement, the parties renegotiated, and the plaintiff did better in that mediation than she’d done in the first mediation. The court reasoned that a separation agreement is supposed to be enforced according to its terms unless the parties can prove unconscionability, fraud, duress, or overreaching. It also noted that an agreement is not unconscionable because some provisions are overly one-sided. If the agreement is clear and ambiguous, the parties’ intentions are determined solely from the language of the agreement, not from extrinsic evidence.
However, the court also reasoned that extra attention has to be paid to the maintenance and child support terms. Maintenance terms must be fair and reasonable at the time the agreement is made. They need to be scrutinized more than an ordinary contract. The court determined that the mutual waiver of maintenance to which the plaintiff had agreed was questionable. It ordered a hearing to discover the facts and circumstances that led to a mutual waiver of maintenance.
As you can see from this case, courts are reluctant to set aside agreements made with the help of a mediator. It is important to consider the recommendation not to utilize a review attorney, when using divorce mediation, particularly if you believe that your spouse is coercive or abusive, such that you may not be getting a good deal. You should also pick a mediator who has experience with family violence issues.
If you wish to try mediation to work out a custody or other issue, the mediator should be apprised of any domestic violence or threatening behavior that has been part of the marriage. It is also advisable for a spouse who has been a victim of abuse to retain an attorney. The mediator must assess whether a couple is in mediation willingly or because the court ordered them to be there. For those that still want to avoid a contentious litigated court battle, there is the alternative dispute resolution method called collaborative law. Collaborative law is somewhere in between mediation and litigation. Feel free to click around my blog and website for more information on collaborative law.
For more information about mediation, collaborative law, or the complexities involved in divorce procedures in New York, schedule a free initial appointment with Darren M. Shapiro. Mediating couples are invited to come together for their free consultation. You can access us by filling out our online form or contacting us via phone at 516-333-6555.
More Blog Posts:
Lawyer Fees in Divorce and Matrimonial Cases, November 23, 2015
What are the New York Divorce Residency Requirements? November 7, 2015