Divorce mediation is a dispute-resolution process that helps divorcing parties to settle their differences sensibly, and to reach an agreement that they both find acceptable. Mediation makes use of a neutral and impartial third party — a mediator — to guide the parties towards peaceful compromise. Mediators are not referees, judges, or arbitrators, thus they cannot make decisions regarding who is going to get what. Instead, an agreement reached through mediation belongs entirely to the parties themselves; it is their agreement, not the dictate of a judge or magistrate. In fact, when parties reach a mediated agreement, there may be little need for involvement in the legal system.
Mediation typically takes place over the course of three to five sessions. Issues that must be resolved involve sharing time with the children, dividing marital assets, and setting appropriate amounts for child support and spousal maintenance (if applicable). A wide range of other issues can also be addressed during this collaborative process.
It is also important to note that all the issues need not be resolved immediately. Some issues may be successfully mediated, with the remaining issues left for the courts. Or some issues may be put on hold and revisited later, when circumstances require. Mediation is a flexible approach based on the specific needs of the participants.
Mediation is confidential. The participants agree that the mediators will not be called as witnesses in any future litigation. This means that that the things you say in mediation while attempting to work out a compromise cannot be used against you if you later end up in the court system. Additionally, mediation sessions are private. Unless the participants agree otherwise, the only attendees are the participants and the mediations. In contrast, divorces take place in open court, with other litigants, attorneys, and even members of the public present in the courtroom.
Mediation sessions are casual and informal. The mediators guide the conversation through a problem-solving process that encourages the participants to focus on resolving issues, not attacking each other. In contrast, litigation is, by design, formal and adversarial. There are strict rules regarding both the procedure and substance of what can be addressed. And it is the attorneys’ job to point out and attack the weaknesses of the other side.
Mediation is voluntary. It continues only for so long as the participants want it to. Mediation sessions can be conducted weekly, every two weeks, once a month, or however often the participants wish. In litigation, there are strict timelines (that are sometimes followed, and sometimes not, for a variety of reasons). Sometimes these timelines cause the parties to have to move faster than they wish. At other times, the court system can be cruelly slow, causing a dispute to remain unresolved far longer than necessary.
Mediators are neutral facilitators. They do not represent either participant in the mediation. In contrast, attorneys are advocates. It is an attorney’s job to strongly press for his or her client’s advantage, and to attack the weaknesses of the opposing party. Attorneys often put up walls between the parties, cutting of useful communication between the parties. The role of the mediator is almost the opposite: It is to help remove barriers so that the participants can work together directly.
In mediation, the agreement is the result of a meeting of minds between the parties. By working together to resolve their issues, participants in mediation decide how to structure their lives after divorce instead of leaving these decisions to the courts. Parties can craft their own parenting and financial plans to meet their own individual needs, rather than be bound by the requirements of the law.
The retainer (the initial payment to get started) on a mediation case tends to be significantly less than the two parties would pay for two separate attorneys in a litigated divorce.
Jacob Tuckfelt, Esq., is a matrimonial and family law attorney, as well as a trained mediator and collaborative divorce practitioner. He has conducted mediations for the court system and for the local state-supported community dispute resolution center (DRC), where he is a member of the mediator panel. He has also co-mediated complex divorces with Richard Mandell, Esq., one of the founding mediators in Orange County. Jacob also continues to update and expand his mediation skills through training and educational course. Some recent courses completed by Jacob include:
Custody and Visitation Mediation Training, Dispute Resolution Center, September 2016;
Mediation Training, Stalder Mediation, April 2014;
Interest-based Negotiating in Collaborative Divorce, Katherine Miller, February 2013;
Interdisciplinary Collaborative Practice Training, NY Association of Collaborative Professionals, March 2012.
Lisa Fitzgerald is a paralegal with 20 years of experience in matrimonial and family law. With this experience, Lisa brings a strong passion and drive for helping individuals with their legal needs. She is a lifelong resident of Orange County and an involved member of her community, giving her a vested interest in the families she assists through mediation. Before entering the field of law, Lisa graduated from Johnson and Wales University with a Bachelor's of Science in Marketing. Lisa has completed basic mediation training as well as custody and visitation mediation training, and is a member of the mediator panel of the Dispute Resolution Center.
Surprisingly, no license or other credentials are required to call oneself a mediator in New York State. No legal experience or family counseling experience is required. Anyone can simply “hang out a shingle” and begin calling him- or herself a mediator. In contrast, both Jacob and Lisa have undergone extensive training, and are qualified mediators with their local, state-sanctioned Community Dispute Resolution Center. In additional, both Jacob and Lisa have extensive experience in matrimonial and family law, so understand how mediation fits into the broader context of the legal system.
At the Law Office of Jacob Tuckfelt, LLC, our approach to divorce mediation emphasizes a co-mediation. This process uses two mediators at the table with the two participant spouses. Co-mediation is an established model that helps to ensure that both participants are fully supported, while still remaining a less expensive alternative to litigation. While Jacob and Lisa share a common background in matrimonial law, they have had different life experiences, and come to their roles as mediators with different perspectives. This helps to ensure that the participants are provided with a range of creative options for resolving their issues.
As an attorney licensed to practice in New York and New Jersey, Jacob is permitted to file divorce applications on behalf of the mediating parties. Such applications are referred to as “uncontested divorces.” They incorporate the parties’ mediated agreement into the divorce decree that gets signed by a Judge. As an experienced matrimonial lawyer, Jacob can ensure that the agreement meets the parties’ expressed needs, is fair and reasonable, and covers all the topics necessary to obtain a divorce and related relief (child support, maintenance, etc.). Lisa has prepared hundreds, if not thousands, of uncontested divorces and knows how to make sure that they are processed correctly when submitted to courts system.
Jacob and Lisa have access to a wide range of additional professionals such as financial planners and family counselors. These professionals can be called upon if their services would benefit the mediation process.
For most mediations, the only attendees are the mediators and the participant spouses. There is no need for the participants to bring attorneys to the mediation. In fact, unless the additional attorneys are trained in collaborative dispute resolution, they can be more of a hindrance than a help. Their attendance will also bring substantially greater cost to the process.
After a draft or final mediated agreement is reached and prepared in proper format by the mediators, copies will be provided to the participants. The mediation participants are then encouraged to use outside attorneys to review their agreement. We can recommend qualified local attorneys for this purpose.
Contact our office to set up an initial appointment. Because mediation is a voluntary process, there is no “minimum” number of sessions that must be completed. If, after the initial session, the participants decide to take another path, the mediation can be terminated.
Nothing prevents the spouses from resorting to litigation if mediation fails. However, once litigation commences, it can be very difficult to “de-escalate” back to a point where mediation is appropriate.