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.” To call oneself a “mediator” in New York, one does not necessarily have to have any training in mediation (although many mediators do participate in some form of training).
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.
Mediation can be beneficial for the right people. It can be less expensive and less time consuming. Mediation works best when both people are cooperative, can communicate effectively, and are willing to engage in open, honest, and fair negotiations.
Mediation is not a “one size fits all” process because it is not appropriate in many 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.
A mediator does not have to be an attorney or have any specialized legal training (although there are some that do). This presents an interesting problem: if your mediator does not have the legal expertise to know what your legal rights are or the possible outcomes if you decided to litigate your case, then how do you know that the agreement you are entering into is fair and consistent with the law? If you had to have heart surgery, would you select a surgeon who has only read about the procedure from a book, or would you rather have a surgeon that has years of experience performing the surgery in the operating room? I know who I would select!
The opposite of “mediation” is not always “litigation.” An experienced matrimonial and family law attorney can help you achieve an amicable agreement if that is your goal. So you should consult with that attorney before deciding that mediation is the best option for your situation. If you do not consult with an attorney first, then minimally you should consult with an attorney before you sign any agreement prepared through mediation. If you do not, then you will be stuck with the bargain that you struck, even if it was a bad one!