In family law, perhaps more so than in almost any other area of law, conflicts are inevitable. In family law, conflicts are inherently personal already. Mediation is a legal tool to help two parties, often two halves of a couple, reach an agreement or compromise without going through court. This process can be extremely advantageous, but does have its limits and disadvantages. This article is designed to answer basic questions about how mediation is used in New York family law, including:
- What Mediation is, how it works, and when it can be used.
- The costs and restrictions of mediation as it is used in family law in New York.
- Some examples of how mediation can work, or not work, in a divorce settlement case.
What Is Mediation And Who Is The Mediator?
Mediation is a process where two (or very rarely, three or more) parties will meet with a neutral person to help them come to an agreement. Most of the time that’s an attorney, though it technically does not have to be one. The parties are free to use anyone who is certified to be a mediator.
It is generally recommended, however, that the mediator be an attorney with at least some experience in the specific legal issues at stake in the dispute they are helping to resolve. This will ensure that they are aware of the stakes and issues involved.
What Makes For A Good Mediator In Family Law In New York?
In New York, only certified mediators are allowed to conduct mediation. This is vital as the mediator must be capable of staying neutral while remaining accountable for doing so.
Mediation certification training is usually a 48 to 60-hour course that family law practitioners will take. In a nutshell, it focuses on how to work out or attempt to work out an agreement, as well as how to draft it. The mediator does not generally draft any forms other than the agreement itself.
As such, one of the things you will want to check when choosing a mediator is where they got their certification from. Often this will be prominently on display as a diploma or plaque, but if they are unable to answer, it might be best to choose a different mediator!
Do I Need A Court-certified Mediator For My Family Law Dispute Mediation?
New York family law courts have a separate list of court-certified mediators. You are not obliged to choose one of these for your dispute.
The only difference between the court-certified list and other certified mediators is that a Judge or Referee in your divorce case or Family Court case must make the referral to the court-certified mediator directly. When seeking your own “privately-retained” mediator, there is no obligation to choose from this list, though it can have its advantages.
Notably, if a mediator is on the court-certified list, they have to agree to a whole set of rules, including about their hourly rate. In Westchester, for example, they are limited to $400 an hour (as of 2023), which is often a substantial decrease from the $500 to $800+ an experienced divorce attorney can otherwise bill.
What Is The Role Of A Mediator In Family Law In New York State?
Mediation is all about reaching an agreement without having to go through the time and expense of court. By negotiating through the neutral third party, the mediator, individuals are able to come to a compromise they can both agree on and proceed with the family law matter at stake. The mediator does not necessarily replace the need for a lawyer of your own, nor will they handle the majority of the procedural aspects of the divorce case itself.
For example, let us say you hire a mediator to do a divorce settlement. The mediator will not actually file the divorce case in court. Nor will they draft the “judgment package,” which includes the judgment of divorce terminating the marriage. Instead, the mediator will draft what’s called the settlement agreement (a/k/a “stipulation of settlement”) – or a separation agreement if you are not ready to proceed with the divorce.
In addition, they will walk you through all of the issues at stake in the case, such as…
- Child custody,
- Child support,
- Child visitation,
- Asset distribution,
- Property distribution,
- Debt distribution, and
After going over the issues at stake in your case, they will present you with a menu of options. Once they have found options that both parties can agree on, which can sometimes take several rounds of negotiation, and more rarely, several mediation sessions, they will produce the agreement you have settled on.
What Is The Difference Between A Mediator And An Attorney? Do I Need Both?
The key difference between a mediator and an attorney is that the mediator is not there to give you legal advice. Unlike an attorney, a mediator is never supposed to answer questions such as “Should I do this” or “Is this option in my best interest”? The mediator is supposed to remain neutral throughout the entire process.
Instead, they essentially guide you through the process of reaching your own agreement. They will not tell you what you might get if you take an issue to a Judge, as such questions are best handled by your own family law attorney. If you reach the point where you have those questions in the process of mediation and do not already have one, you need to go out and get your own attorney. It is vital to have both the legal advice an attorney can provide and the guidance toward compromise a mediator can offer for mediation to work well.
What Does A Family Law Mediation Process Look Like In New York?
Usually, the process of mediation is conducted over the course of several sessions, with the aim of reaching an agreement on all the issues. This is often referred to as the basic term sheet.
At the end of mediation, the mediator will distribute the term sheet to each spouse or each party if it’s a family court case, and will ask a series of key questions once you have discussed everything in mediation, such as…
- Are these terms what you are agreeing to?
- Do you want or need anything else?
- Do you have any other questions?
- Do you need any other legal advice?
Once they are satisfied that everyone understands and accepts the terms, the mediator will draft the actual settlement agreement – or the parenting agreement if it is a Family Court case (such as custody or visitation disputes). Either way, they will then distribute it to both parties.
Everyone is then encouraged to bring that agreement over to their attorneys. Their attorneys will look it over, discuss it with each party, give them legal advice on the agreement, and possibly suggest changes. If they want any changes, they come back to the mediator and launch another round of discussion. Once both parties reach the point where they are fine with what’s been drafted by the mediator, it’s just a matter of signing it before a notary public, and the mediation is done.
What Are The Advantages And Disadvantages Of Mediation For Resolving Family Law Disputes?
When mediation works, both parties end up saving considerable amounts of money compared to the “regular” process of going through a divorce case. After all, you can split the mediation fee and will need far fewer billable attorney hours. And mediation works, on average, roughly 50% of the time.
Unfortunately, when it does not work, you will end up spending even more money than if you had just gone through the regular divorce process from the very beginning. In effect, the money that you spent on the mediator will have been “wasted.”
So, before taking that gamble, ask yourself how reasonable you think your spouse is going to be in reaching an agreement.
Mediators will often help by doing an initial screening to avoid cases where there has been relatively recent domestic violence or where there are coercive control issues. At that point, each party really ought to have their own attorney, and mediation is not the correct approach.
Otherwise, if two reasonable, rational people come in who are cooperative but just cannot live under the same roof and need to terminate the marriage, mediation can certainly work wonders and save everyone considerable time and cost.