FAQ – MEDIATED SOLUTIONS FOR LIVING

  1. Divorce and Separation Frequently Asked QuestionsWhat do you mean by “Mediated Solutions for Living”?
  2.  What is Divorce Mediation?
  3.  What sorts of issues are usually the subject of a Divorce Mediation?
  4.  What is meant by “marital property”?
  5.  Are there advantages to Divorce Mediation over a litigated divorce?
  6.  With all of the noted advantages, is there a reason why someone would not mediate their divorce?
  7.  Are there cases that aren’t good ones for Mediation?
  8.  Do you mediate divorces and domestic issue involving single sex couples?
  9.   How long does it take to mediate and get a divorce?
  10. How does the process work?
  11. What role does the Mediator play?
  12. Is the process confidential?
  13. Does the Mediator make recommendations or give a judgment or decree to the court?
  14. What may I expect at the first session?
  15. Is there work to be done outside of the Mediation sessions themselves?
  16. Is Divorce Mediation appropriate where children and custody issues are involved?
  17. Why does Divorce Mediation provide a speedier resolution of issues?
  18. What if one of the spouses is far from New York or is traveling a lot – may the sessions be conducted by phone?
  19. Will the Mediator inform me of my rights in a divorce?
  20. So how do I learn about my rights in a divorce situation?
  21. What’s the point of Divorce Mediation if I have to consult an attorney anyway to learn about my rights?
  22. What’s the difference between a Memorandum of Understanding and a Settlement Agreement?
  23. Will we have a final say over the Separation Agreement?
  24. What qualifications do you have to do Divorce Mediation work?
  25. We have been trying therapy but it hasn’t worked – is it a good idea to start the Mediation process even though we haven’t ended our therapy?
  26. We are undecided about whether Divorce Mediation is appropriate for our situation, may we speak to you before making a final decision?
  27. We’re not ready to divorce yet but we need to make decisions regarding parenting and financial matters. Can these issues be mediated without necessarily coming to an agreement on everything right now?
  28. What if the Mediation doesn’t work out?
  29. What if we start the process and want to take a break to try family therapy?
  30. What if I’m uncertain about which route to take?
  31. What is my cost commitment?
  32. How do you go about mediating family business disputes?

 

What do you mean by “Mediated Solutions for Living”?

Our tagline, “Mediated Solutions for Living” refers to the use of Mediation to solve one or more of the whole range of issues, including separation and divorce which involve family relations. It includes resolving issues between couples living together but who are not married or who are in civil unions, and includes issues where parenting partners, though they may be living apart, wish to resolve any one or more of the array of parenting issues that may arise. Family Mediation also covers disputes over family closely held businesses, including succession issues.

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What is Divorce Mediation?

Divorce Mediation is a conflict resolution process that provides separating/divorcing couples a confidential and neutral environment where they can discuss and come to an agreement on all the major issues in the dissolution of their marriage. The couple forgoes an adversarial approach (in which each is represented by attorney charged to get the best deal possible for their respective clients) in exchange for a give-and-take process that gives the couple the freedom to make their own decisions regarding property distribution, parenting arrangements, etc.

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What sorts of issues are usually the subjects of Divorce Mediation?

The issues may be whatever the couple wishes or needs to resolve; however, the issues usually fall into these categories:

  • Division of marital property
  • Spousal support maintenance (formerly referred to as alimony)
  • Child Support
  • Parenting arrangements (sometimes referred to as custody)

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What is meant by “marital property”?

The law defines marital property as [to be supplied]

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Are there advantages to Divorce Mediation over a contested divorce?

Yes, it is generally agreed that there are several significant advantages to Mediation.  In Mediation, you, and your spouse, with the guidance and help of the Mediator, have considerable freedom to determine the terms of your separation and/or divorce.  In a litigated divorce, you have much less control on the divorce judgment which is written by the court and it may leave one or even both of the parties unhappy with the outcome.  While the courts work hard to be fair they are frequently limited by the law in terms of what will go into its final judgment of divorce.

Second, the mediated divorce will almost always cost substantially less than a litigated divorce (see #31, “What is My Cost Commitment“).

Third, the Mediation process is much faster. Your case can be ready for filing in 8 – 12 weeks in most cases (where the issues are straightforward and largely agreed upon, it could be ready for filing in as little as a month.)

Fourth, there are no stressful depositions or trial days and you are not competing for the limited time available on the court’s docket for a court date.

Fifth, Mediation helps to keep a dialogue going between the spouses and this is frequently helpful in lowering tensions.  Where children are present this may be especially helpful in shielding them from the potentially damaging stresses of breakup and divorce.

Finally, as the couple are the ultimate designers of the Separation Agreement, this gives them an active role, should they so desire, in setting the stage for continuing civil relations which will be especially important where children are in the picture.

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With all of the noted advantages, is there a reason why someone would not mediate their divorce?

Yes. If a couple are not comfortable in meeting with the Mediator on a regular basis to discuss the key issues without high tension and/or if one or the other of the spouses believes that the adversarial system will deliver a better “deal” for them then Mediation may not be the appropriate route for him or her.

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Are there cases that aren’t good ones for Mediation?

Yes.  Cases where there is spousal abuse, a high conflict level and/or high distrust may not lend themselves to Mediation.   Occasional arguments do not necessarily amount to high conflict and are expectable in the Mediation process.

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Do you mediate divorces and domestic issues involving single sex couples?

Yes.     

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How long does it take to mediate and get a divorce?

Depending on the number of sessions necessary to agree on issues, and allowing for several weeks for comments by a review attorney, a case should be ready for filing in 10 – 14 weeks.  Court review varies by county but, a judgment of divorce takes in the range of 8 – 12 weeks.

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How does the process work?

Guided by the Mediator, the couple will discuss and resolve issues about property distribution, child custody and support and maintenance (formerly referred to as alimony).  The discussions usually take place in weekly, one-hour sessions, which continue until all issues are resolved. The ultimate objective is to detail their decisions in a Memorandum of Understanding (MOU) from which a lawyer will draft a Settlement Agreement, the document that will serve as a basis for the legal separation and/or divorce.

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What role does the Mediator play?

The Mediator guides the process while remaining neutral throughout the sessions. The Mediator helps identify the issues to be discussed and resolved and he/she may also help to determine when assistance from other experts such as attorneys, financial and business counselors might be useful in helping to resolve issues.

Once issues are discussed and agreed the Mediator records their points of agreements in a Memorandum of Understanding that will serve as the basis for the divorce.

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Is the Process confidential?

Absolutely – the ability of the parties to meet in a neutral and confidential setting is key to the success of mediated divorces.  The parties’ agreement to the confidential environment is a part of the Mediation Agreement.

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Does the Mediator make recommendations or give a judgment or decree to the court?
Absolutely not. As the Mediator is a neutral, the sessions are completely confidential, and no reports or recommendations are made to the court.

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What may I expect at the first session?

The first session begins with a brief review of ground rules.  The Mediator’s principal task at the first session is to learn of the couple’s current circumstances and their objectives in the Mediation. As the couple “own” the Mediation process, they are encouraged to identify issues of particular importance with which they wish to start the process, especially if there is something pressing that needs to be resolved.  Often, there are many issues to be discussed and a couple may not even know where to start in which case the Mediator assists in identifying the issues and the order in which that might best be considered. (Either party is free to vary the agenda to take up issues that may arise between sessions.)

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Is there work to be done outside of the Mediation sessions themselves?

Sometimes there may be homework assignments – preparation of worksheets (provided by the Mediator) for detailing the existing household budget, assets and liabilities – is an example.  The parties may also find it useful to have discussions with their financial advisors, attorneys, etc., between sessions, to address any issues requiring expert advice.

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Is Divorce Mediation appropriate where children and custody issues are involved?

Yes. Divorce Mediation is especially beneficial where children and custody issues are concerned.  While divorce is stressful to all, the Mediation process helps to dial down the “temperature” of the disputes and helps to minimize the spillover effect of parental stress on the children.  The couple is free to design a parenting schedule that meets their particular needs and those of their children.  The Mediator will be able to offer a number of proven parenting plans which address often overlooked issues such as holidays and vacations.

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Why does Divorce Mediation provide a speedier resolution of issues?

The participants meet on a weekly basis and continue until all their issues have been raised, discussed, and resolved. Generally, only the most complicated or difficult Mediations take more than 8 sessions to resolve. The Separation Agreement drafting process will add a month or so on top of this.  Once signed, the Separation Agreement and the initiating documents for the divorce are filed with the court.  A final judgment of divorce may be obtained in as little as 4 – 5 months after the first Mediation session (depending upon the judicial district).  Even with the occasional complication, a judgment of divorce is almost always obtained in well under a year.  If you pursued divorce in court, a different process is involved and may even take a year or more even if the case doesn’t go to trial.

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What if one of the spouses is far from New York or is traveling a lot – can the sessions be conducted by phone?

Yes, as long as the other spouse has no objection to this. In fact, it is possible for both spouses to participate by phone/video link.

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Will the Mediator inform me of my rights in a divorce?

While the Mediator may inform you as to as to certain legal information surrounding divorce, custody, property division, etc., the Mediator does not provide legal advice. For the Mediator to do otherwise would interfere with his/her neutrality.

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So how do I learn about my rights in divorce?

Each spouse is encouraged to obtain independent legal advice for this purpose.   In addition, there are many on-line resources available as well as materials at your local library.  (Some helpful information may be found on the “Resources” tab on this web site.)

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What’s the point of Divorce Mediation if I have to consult an attorney anyway to learn about my rights?

Full knowledge of your legal rights will make you an effective participant in the Mediation process and therefore well suited to discussing the kinds of trade-offs and compromises which may take place.  Even when counsel fees are added to the equation, it is almost always a less expensive process than if a court ordered solution is sought.

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What’s the difference between a Memorandum of Understanding and a Separation Agreement?

The Memorandum of Understanding (MOU) details all of the points of understanding arrived at between the parties. The Separation Agreement converts these points of agreement into the legalese necessary for a formal and enforceable agreement. It is the Separation Agreement which is submitted to the court and forms the basis for the divorce judgment.

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Will we have a final say over the Separation Agreement?

Absolutely. In fact, it is considered good practice for both spouses to be guided in the reviews of the draft agreements by their respective review attorneys so they may obtain an independent assurance that all major areas have been covered and to make certain that the document is clear and understandable. This is important because the Separation Agreement is presented to the court for review. If the assigned judge has no objections, she/he will incorporate the Separation Agreement into the Judgment of Divorce, the act that officially terminate the marriage.

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What qualifications do you have to do Divorce Mediation work?

Consensus Point’s principal, Sandy Balick is a practicing attorney with two law degrees and is a veteran of many dispute settlements and workouts.  He is also experienced in solving disputes in both governmental and non-profit areas. He has volunteered at a major non-profit agency’s crisis hotline for kids and adolescents.

In addition, he has had over 180 hours of specialized training in Divorce and Family Mediation and is a member of the [ny city and state DM organizations –names to be provided].

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We have been trying therapy but it hasn’t worked – is it a good idea to start the Mediation process even though we haven’t ended our therapy?

While there is no reason this could not be done, it is a decision best discussed with your therapist.

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We’re undecided about whether Divorce Mediation is appropriate for our situation, may we speak to you before making a final decision?

Absolutely.  Sandy provides a no-fee initial session where we are pleased to answer your questions. Please feel free to arrange an appointment, for which there is no charge or obligation.

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We’re not ready to divorce yet but we need to make decisions regarding parenting and financial matters. Can these issues be mediated without necessarily coming to an agreement on everything right now?

Absolutely, although to be legally binding and enforceable, any agreements should be drafted (and possibly filed in court) by an attorney and signed by the couple.

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What if the Mediation doesn’t work out?

You have no obligation to complete the process and you are free to seek alternatives that may range from reconciling to active litigation.  As no retainers are involved there is no lingering financial commitment.  As the Mediation sessions were confidential by agreement between the spouses, the Mediation discussions are not ordinarily admissible in court.

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What if we start the process and want to take a break to try family therapy?

This is completely fine – in fact, Divorce Mediators would consider this a positive step – even if you never return to Mediation. Sometimes, after discussing the issues that divide them, spouses feel that efforts to preserve the marriage are worthwhile and suspend the Mediation in favor of therapy and possible reconciliation.

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What if I’m uncertain about which route to take?

You must consider the various pros and cons in light of your particular situation.  Divorce Mediation is relatively fast and economical and frequently helps to lower tensions. If you hire an attorney to pursue your divorce, he or she is your advocate and is supposed to get the best deal possible for you and you alone, unless you instruct otherwise.   Retaining counsel doesn’t necessarily mean you’ll go to trial but the possibility increases if issues remain unresolved and/or if efforts at negotiation between counsel drag out time-wise.  Your attorney is the best source of what may be expected in a contested situation in terms of time, cost, etc.

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What is my cost commitment in Mediation?

Consensus Point does not require payment of a retainer fee. Fees are charged per-session on a pay as you go basis.  If the participants believe that the process is not being helpful to the resolution of their issues they are free not to participate in further sessions, although 24 hours notice is required for cancelling a session previously scheduled, in order to avoid the fee. The parties may opt to seek the advice of specialists such as for accounting, tax, pension or legal advice whose fees would, of course, be in addition to those charged for the Mediation sessions themselves.

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How do you go about mediating family business disputes?

The approach is very similar to the one used to mediate divorce and separation. The parties who are at odds with one another meet directly, in multiple sessions if necessary, in the presence of the Mediator and discuss their issues and the alternatives involved. Ideally, the parties are guided by counsel (who may be in attendance), and other specialists on such issues as valuation, management, etc. The Mediator guides the discussion and records the various points of agreement so that they may be formalized by counsel or other appropriate actions as the parties may determine.

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