For those who would like to resolve their dispute (whether it be a divorce or other family matters) by agreeing to terms rather than having a judge decide what is best, mediation can be a speedier, less costly and less stressful experience than a traditional litigated matter. Traditionally the parties meet with a mediator and the mediator helps them come up with a plan. The mediator will put the plan in writing called a “Memorandum of Understanding.” Should the mediator also be an attorney, they may elect to draft a legal document instead usually called an “Agreement” or “Stipulation of Settlement.”
The parties then have the opportunity to have the document reviewed by an attorney of their choice. This attorney, called the “Reviewing Attorney,” should review the document with the client and point out what the client is agreeing to and what the clients rights are under the law. The parties may then go back to the mediator for revisions, further mediation, or to execute the document depending on how the review sessions went.
You may be thinking, how is mediation less expensive if we have to pay three different people? Normally the mediation process only takes a few sessions and the reviewing lawyers only take an hour or two to be able to review the document, so the entire process takes fewer hours, which results in lower cost. The clients also avoid court appearances in which the parties not only have to take off from work but usually wait around several hours until their attorneys have a five-minute conference with the judge, so there is a savings there as well.
In a divorce mediation, your reviewing attorney should have knowledge of both matrimonial law and estate law, especially if there are children involved. Frequently, divorce agreements include a provision where child support is guaranteed with a life insurance policy, and the document needs to be drafted in such a way where the children’s support is fully protected.
The mediation process works for people who realize that they want to find a resolution as quickly and painlessly as possible so that they can get on with their lives. There are certain situations where I believe mediation would be inappropriate. For instance, I will not mediate where there is any abuse or if one of the parties has an addiction problem. People who are in abusive situations or are addicted to a substance generally cannot participate well in the mediation process.
Overall, if the parties’ goal is to make the decisions that are best for their situation, known as “self determination,” mediation makes sense.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516