Mediation. Many of you have heard of it. Some of you may have experienced it. In this article, I will discuss what mediation is, what it is not, and the positives and negatives of mediation in the context of a matrimonial or family law matter.
What is mediation? Mediation is an alternative method to resolving disputes between two parties. The parties meet with a neutral third party known as a “mediator.” The role of the mediator is to help parties communicate effectively and work together to reach an agreement. While the parties control the terms of the agreement, the mediator can help prepare the written agreement that encompasses the terms agreed upon. The written agreement, if properly signed, is binding on both parties.
What mediation is not: mediation is not litigation and it is designed to be non-adversarial. The mediator does not “represent” the interests of either party. Mediators do not give advice to, or advocate for, either party. Since parties are not put in the position of adversaries, mediation can engender cooperation towards a common goal.
Our clients have increasingly come to us asking about mediation services, and whether mediation would be the best option for his/her circumstances. Mediation can be beneficial for the right people. Mediation works best when both people are cooperative, can communicate effectively, and are willing to engage in open, honest, and fair negotiations. As a result, it can be less expensive and less time consuming.
However, mediation is not a “one size fits all” process. Mediation is not appropriate in several situations. For example, mediation is never appropriate when there is a history of domestic violence between the parties. It is also not appropriate when there is a history of financial abuse by one party against the other, or when one party uses the “bully pulpit” to manipulate the other party.
While it is not necessary for a “mediator” to have any specialized legal training, selecting a mediator with expertise in matrimonial and family law is important. In order for the mediator to discuss each party’s legal rights and remedies the mediator must understand what the law is in New York concerning marriage, divorce, children, and support. Without that expertise, the mediator could be blindly leading people into agreements that do not reflect the law in this state, or, even worse, help to create agreements that violate the law and making them unenforceable.
In order to satisfy the increasing demand for mediation, and enhance our services for our clients, we are pleased to now offer mediation. While New York does not require a “mediator” to attend mediation training, Attorney Margaret Tabak has recently completed a thirty-hour mediation training course approved by the New York Office of Court Administration. We believe that the combination of our legal expertise and Attorney Tabak’s mediation training allows us to offer the best mediation services available in the Capital District. To learn more about mediation and our other services, contact us!