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Mediation

If maintaining the status quo in a marriage is not a desirable option, mediation is an alternative way of resolving differences and reaching an agreement with a spouse, as opposed to resolving differences through collaborative law, arbitration, or litigation. Mediation is typically much less costly than these other ways of resolving disputes.

In the mediation process, both spouses work directly with a neutral person, the mediator, who helps the couple to reach a fair and reasonable agreement.

In New York State, one does not have to be a lawyer in order to be a mediator. However, one should look for a mediator with the appropriate mediation training, experience, and knowledge.

The best candidates for mediation are those couples who are ready for mediation, that is, whether in spite of how each person feels about the situation (i.e. sad, angry, reluctant), they acknowledge there is going to be a separation or divorce, are prepared to work on it in good faith, and are willing to provide full financial disclosure. However, situations involving domestic violence and/or substance abuse are not well suited for mediation.

Mediation is a confidential, non-coercive, and voluntary process. Either person is free to stop at any point. Mediation is not the practice of law. (While the mediator may share “legal information” with the couple, the mediator should not offer “legal advice” which would either involve the unauthorized practice of law if the mediator is not an attorney, or would involve a conflict of interest if the mediator is an attorney.)

Although the couple works with a mediator, it is typically recommended that each person independently consults with their own lawyer during the mediation process. Lawyers can offer guidance and explanation as to what their opinion is as to the parameters of a person’s “rights” and “obligations”, as well as provide information that may need to be addressed in mediation. However, it is important that the right kind of lawyer is found—one who will be supportive of the mediation process and not sabotage it.

Other professionals may be needed in order to assist the couple during the mediation process, such as appraisers, accountants, or financial planners.