Divorce Mediation: Why Doesn’t Everybody Choose It?

When you consider the huge expense of divorce, it is fair to wonder why everyone does not opt for mediation at the beginning. I think it’s because the rancor is so bitter at times that many parties cannot conceive of sitting across a table from their partner. They decide they will leave this mess with the attorneys to sort out; after all, that’s what they are being paid for. I submit that this is shortsighted.

If you choose the contested route, you are still going to see your spouse at all the court conferences, only now you and your spouse will be cut off by the artificial barriers of your respective attorneys. Instead you will steal glances at him/her to see his/her reactions to what is going on. Think how strange this all is. Understandable, yes, but still strange and ultimately self-defeating. Your lawyers are not just litigators. They are also de facto mediators. If they are doing their job, they will be attempting to settle your case throughout the process. So, why not cut through all this and get involved in settling your case yourself.

First of all, you are protected in mediation. If your spouse is abusive, the mediator will cut short the conference. If the behavior continues, the mediator will advise the parties to seek their resolution in court. If there is no such extreme abuse, there is no reason why you cannot seek a mediated divorce. You need to learn all the legally-relevant issues in your case and understand New York law and how it applies to the specific issues in your case. This is the job of the mediator. With the help of the mediator, you will need to agree on exactly how you will resolve each of those issues. The mediator will then reduce those agreement to a settlement document.

Litigation is necessary in some instances. For example, if your spouse is hiding assets, the mediator lacks the power of a court to subpoena the requisite documents. Also, in a complex case, your attorney can depose your partner which a mediator cannot do. However, in the vast majority of divorces, I believe mediation is the best way to resolve your divorce.

If you wish to schedule an initial consultation please contact me at 212-605-0435 or 516-280-3123.