What is Mandatory Presumptive Divorce Mediation?

The May 16, 2019 article of Dan M. Clark in the New York Law Journal outlined presumptive divorce mediation, which was initiated this fall, as a system that the state courts in New York must now have in place to encourage that civil litigation be resolved via mediation, rather than open court. This strategy hopes to reduce some of the backlogs that have been plaguing the judiciary environment up until this point. Although such systems have existed throughout some state courts in New York before today, the new initiative will affect all state courts. Now, presumptive divorce mediation has arrived on Long Island, and New York State, meaning that litigated cases are automatically referred to mediators within the court system.

The new initiative clearly recognizes the value of mediation, including divorce mediation, or family law mediation as a strategy for resolving disputes over litigation. Based on the results that the courts have seen from the initiative following a trial in New Jersey, this program is expected to have many positive results. To cut out the gearing up for court before going to mediation in court, couples going through divorce could also choose to use their own private mediators, outside of the court system, to start mediating. Though there may still be cases wherein an issue cannot be resolved by divorce mediators and need judges to decide issues, the new strategy encourages more people to start their divorce process through alternative dispute resolution methods.

Starting a Case with Mediation

There are circumstances wherein mediation might not be a suitable resolution to a divorce case. However, as Claudia Lanzetta of Law.com notes in her August 2, 2019 article, just because a resolution couldn’t be reached in divorce mediation, doesn’t mean the process is wasteful or unsuccessful. Mediations can be considered successful provided that the parties have a better understanding of their cases, and the positions of the other party by the end of the process. We can also say that progress has been made if the parties have a better insight into the weaknesses and strengths of their cases. While divorce mediation might not always settle the matter, it could help to move things along in the right direction. A mediation session with a divorce mediator could also clear away some of the emotions that would stop a litigation procedure from going smoothly too.

According to Adina L. Phillips and Samuel J. Ferrara in their article in the October 2019 edition of the Nassau Lawyer, Presumptive ADR, or Alternative Dispute Resolution, is now being implemented in every case within the Nassau County Matrimonial Center. Post judgment matters are receiving ADR intervention, to help reduce the overwhelming backlog in the litigation court. If the parties are represented already, then the counsel that they have chosen can also be present for the mediation. If a settlement can’t be reached at the preliminary conference, then the court will move the case over to one of three pathways for mediation. The court has the right to recommend what it believes to be the correct mediation pathway based on what they understand about the circumstances of each case.

According to the article, the first option and mediation pathway available in the current landscape is a program that is based at the Centre for Children, Families and the Law Center at Hofstra University. The program is currently supervised by the managing attorney and director of CCF and the director for the institute of family psychology. Teresa Ombres, Esq. will also be involved in this pathway. This mediation option focuses on reaching solutions to pro-se cases. The second pathway for mediation available will take advantage of an existing master’s program for assisting represented parties. This strategy consists of various experienced attorneys with specialized training. The biggest change to this program following the arrival of Presumptive ADR is that the consent of the parties and their representation isn’t required for participation anymore.

The third mediation pathway available from now on is the judicial mediation pathway, wherein the judge or law secretary can conduct further mediation and refer judicial hearing officers to the case. As well as mediation in these circumstances, the court will continue assessing the cases for potential settlement options at each court conference. If the case cannot be settled, even with mediation, the courts will conduct additional mediation at the conference to facilitate the progression of the case or limit the number of issues that most be taken to trial.

Preparing for Mandatory Presumptive Divorce Mediation

The article details that the Matrimonial Law Committee of the Nassau County Bar Association believes that the new initiative at the matrimonial centre will produce valuable results for parties facing a new and complicated experience. The matrimonial committee and many other groups are excited to see the results of these new initiatives in the family law environment. For matrimonial practitioners and their clients across the country, the new program for Presumptive ADR has the potential to make a huge difference. This new strategy could be very helpful in supporting valuable negotiation in a pre-litigation stage before a case is required to go to court. It could also mean that you can settle your case before court intervention is necessary.

If you would like to cut to the chase of being assigned a mediator for your case, and instead choose an experienced mediator and family law attorney to assist you before litigation reach out to my office today. I am a fully trained mediator offering free initial consultation sessions for couples. I also represent people in matrimonial and family law negotiations and litigation. You can book your free consultation with your partner for up to 30 minutes free, for couples that wish to mediate with me, to discuss your options by contacting us at (516) 333-6555.