Mediation may not be appropriate for everybody but could be the right process for you. Unfortunately, many people dismiss it out of hand, based upon some misconceptions about what mediation is or isn’t. This video tries to dispel some of the most common myths to help you decide if mediation is right for you.

{4 minutes to read} Are all family disputes the same? Of course not. Divorce mediation is different from mediation involving the contest or interpretation of the provisions of a Will or Trust Agreement. But clearly, they have similarities:

Ongoing Relationships

While some familial relationships may have always been troubled, it’s likely that at some time, the parties probably got along well. And they may need to continue to get along for the sake of attending extended family gatherings, care of a surviving parent, etc., just as ex-spouses need to get along for the sake of their children.

For these reasons, mediation is as beneficial for estate and trust disputes as it is in a divorce. And with the adoption of presumptive mediation in New York Courts, parties may have the opportunity to mediate their dispute.

I serve on the Roster of Mediators for Westchester Matrimonial and Surrogate’s Courts. I have found the Surrogate’s Court matters I’ve mediated to be well suited to the process and helpful to the parties, even if not all have resulted in a full settlement. The benefits include: 

• An increased likelihood of keeping an ongoing familial relationship, including among the children of the siblings in conflict. The chances of this are greater if there is an outcome that is agreed upon versus a win/lose outcome that would be inevitable in a judicial resolution. 

• The strong emotions that exist because of a breach of trust are better addressed by a trained mediator than through a litigation process that tends to inflame rather than calm or resolve those emotions.

• Most importantly, the opportunity to be heard and understood is more likely to present itself in mediation, which in turn can lead to a resolution that addresses the parties’ needs and interests.

As helpful as I have found the court-ordered mediation process to be, I think it would be even more beneficial to mediate estate issues as a first option, just as I recommend mediation as a first option in divorce. This can prevent the positional posture and hardened points of view that occur in an adversarial process.

Because of the presumptive mediation mandate, trusts and estate attorneys are more aware of the benefits of mediation. Many have taken mediation training themselves. So, if you are involved in a contested estate, you can speak to your attorney about whether it would be possible to pursue mediation before filing a contested action. 

In this video, the last of the series on Equitable Distribution, we look at the implications of the statute to parties in mediation. It is important for clients to know what the law provides, and what is likely to happen in Court, whether they are in mediation or not. Then, when in mediation, they can make informed decisions as to whether to apply or waive the provisions of Equitable Distribution.

In my last video, I mentioned marital property as a part of the discussion of Equitable Distribution. In this video, I want to explain the difference between assets that are separate property and those that are considered marital property.

There are 14 factors that are used by courts and attorneys to determine an equitable distribution of marital assets. In mediation, the couple makes these determinations together. Taking the time to review the factors, however, you may find one that resonates with you, and allows you to make a proposal to your spouse that will take into consideration its relevance to you and explain why you think you should get the property distribution that you are proposing in your mediation.  

{4 minutes to read} When I’m being mindful of what I’m saying, I can stop myself from using the word “but” after I’ve just apologized to someone. I recognize how off-putting that can be to the person to whom I’ve just apologized, and that it effectively negates everything that I said before the but.

When I really don’t believe I’m at fault, though, I may very well end up with an apology followed by “but I didn’t mean to do that because of......” Then I belatedly realize that I gave a non-apology apology and if I really intended to apologize, I will need to do it all over again — without any excuses.

So, I know from my own experience that it’s very hard to avoid using but, especially when strong emotions are at play. It’s a word that comes so naturally when you feel threatened and defensive.

I also know from my professional experience that when a client uses but in mediation, what is said after the but is all that the other person focuses on. That one little word can not only obliterate what had been previously said, but if you use but regularly, the other person may not even listen to what you say initially in anticipation of the but.

By way of example, I had a client recently who attempted to take responsibility for past behavior that she knew was hurtful to her partner. I could see that her partner was receptive to the words being said and his eyes began to show understanding. Then, came the but followed by an excuse for the behavior for which she was apologizing. At that point, the partner reacted even more negatively than before the apology. It would have been more productive had she not said anything at all.

The better approach — if you sincerely intend to apologize — is to just stop after the apology. If you can’t do that, then consider whether you are truly ready to apologize.

The danger of but in mediation isn’t limited to non-apologies for past behavior. It can also serve as an excuse for future behavior, as in “I agree that it would be good for our daughter to join the dance club, but I can’t afford it.” A better approach in mediation would be “I agree that it would be good for our daughter to join the dance club. Now, how can we pay for it?”

• It’s not off-putting. 
• It can lead to discussion. 
• It very well may result in both of you acknowledging that it’s not affordable right now without resenting one another.

Eliminating the use of but can be a tall order, so a first step can be to recognize it in retrospect when you think about how a past conversation went. If it makes sense, you can try a redo, and if not, you can learn from it. Being in the moment and conscious of what you’re saying takes practice, and you will find that it is well worth the effort.  

{4 minutes to read}  In other posts, I’ve often touted the benefits of working with a financial professional, either together or separately, during a couple’s divorce mediation. In this post, I want to summarize the circumstances under which I think a mediation would progress most easily, and that is if both spouses worked with a financial professional who acts as a neutral.

While the training and expertise of the financial professionals would be the same, a financial professional working as a neutral is different from a financial professional who only works with one party and only supports that person’s interests. The latter situation might arise because one party feels that the other has a superior knowledge or acumen for financial matters, and that the less knowledgeable party needs more education or help than the other. In such a case, the financial professional is an advocate for that party and definitely should not be considered a neutral, any more than either party’s attorney would be considered a neutral.

A financial neutral in mediation is more akin to the role of a financial neutral in the interdisciplinary collaborative practice model. They would work with both parties and ultimately present complicated financial concepts in a simple, easy-to-understand fashion.

Here are some other reasons why working with a financial neutral is a good idea:

If you determine that a financial neutral would be well worth the cost, your mediator can suggest professionals who can fulfill this role. 

{4 minutes to read}  You and your fiancé have discussed the terms that you would want in your prenuptial agreement. You seem to be in agreement, so you feel that there is nothing to mediate and don’t see the need for a mediator when you could just have your lawyer draft the agreement and your fiancé can have an attorney review it. So, why involve a third professional and incur an additional fee when nothing is really in dispute?

You May Not Have Addressed Everything

Drafting Misunderstandings

Your attorney’s job is to represent your interests only, so if there is some leeway when drafting the agreement to use language that is more favorable to you, that is the language that would be used. While you may not even be aware of that drafting choice, your fiance’s attorney would certainly recognize such a choice of language and point that out to your fiancé. While you can explain that you didn’t direct your attorney to do anything like that, it would be best to avoid that misunderstanding and those hurt feelings with a more impartial drafting.

Avoid Attorneys Dictating the Process

A word to the wise — keep the misunderstandings and positions to a minimum and create your prenup with a mediator. 

Prenups illicit very negative reactions, but there are a lot of valid reasons why someone would want a prenup and it doesn't have to mean that they think that your marriage is doomed to fail. You are going to want your marriage to be a collaboration and mediation is a collaborative way to create a prenuptial agreement.

To find out what you’re entitled to, you need to go to court. But going to court does not guarantee you will get what you want. When someone focuses on entitlement, there are usually some underlying emotions that need to be addressed. If those underlying emotions haven't been dealt with in a productive way, you're not going to be able to move forward in the positive way that you're looking for.