With the drastic cuts in funding to the Courts in New York State, what had been a long, expensive and painful process in divorce litigation is likely to be even longer, more expensive and more painful with the budget cuts. These cuts will result in lesser hours for the Courts so the resources will stretched even further, likely with less Court personnel as well.

Now, more than ever, the progress of a divorce will not be within your control should you decide to go to Court. It makes even more sense to mediate your matter so you gain control not only of the process itself but, even more significantly, of the outcome. This means that the agreement that is reached will be one that you and your spouse decide will work best for your family.

While, sadly, some cases must be litigated, they are few compared to the cases that are litigated. Give some consideration to whether you and your spouse can mediate your divorce. This will work out best not just for you both but for your children as well and will save you time and unnecessary expense.

You may be aware that New York State adopted a statute in October regarding the calculation of temporary maintenance at the same time that the State enacted the no-fault ground for divorce. The statute provides a formula for calculating an award of temporary maintenance in the event that a litigant in a divorce action brings a motion seeking an award of support during the pendency of the action (temporary maintenance).

So, what does this mean in mediation? That is up for debate in the mediation community. Since it is an award of temporary maintenance and it is by the statute limited to court actions, it technically has no effect. In actuality, couples in mediation will either have a plan already in place for the payment of expenses during the mediation or will discuss it and reach agreement on what will be paid by whom until such time as a written separation agreement is signed. This agreement may or may not be in writing.However, I am of the opinion that knowledge of what the law provides is a good thing, even if it may not strictly apply. My policy is to speak to clients about what it means and demonstrate what the amount would be, but as of yet, I have not had clients who chose to have it apply, either temporarily or permanently.

It is very difficult in New York State to be successful in a Court action to set aside an agreement for the reason that if it was easy to change separation agreements, people would not spend the time and the money to enter into them. This would then result in more litigation, which is not what the Courts want. Among factors that a Court will consider is whether or not an agreement is unconscionable or if one of the parties was unduly influenced. The standards are the same whether your agreement was reached in mediation or through attorney negotiation. If you mediate, however, whether or not a party has review attorneys while in and of itself is not determinative, it is a factor to be considered, especially in agreements drafted by a mediator attorney. So, it is recommended that couples have review attorneys.

Some people are afraid that if they do not hire a lawyer, they will not receive everything to which they are entitled or that they will end up with an unfair agreement. That need not be a concern. In addition to using an attorney to review your agreement at the end of the mediation, parties in mediation may see an attorney both before and during mediation, and in some cases it is beneficial for a party to come to mediation with an attorney. In my mediations, I always tell my clients from the beginning that they can consult with a lawyer and have suggested it during the process if I thought it would benefit the party. However, most couples decide to wait until they have compelted the mediation to retain an attorney.

If that were true, there would be no need to mediate. Of course people who disagree can mediate, just like people who are angry can mediate and people who don’t really like each other can mediate. All they have to do is agree to mediate, not agree upon every issue between them. Mediators do not expect their clients to talk quietly and never raise their voices, and a mediator truly has to feel comfortable being in the middle of people expressing anger and frustration, often times loudly. The mediator’s job, through restating and reframing what a party says and asking questions, is to get them to really hear what the other is saying and feeling and then see where they have shared interests to brainstorm resolutions where those interests can be met for both of them.

If you and your spouse have decided that you need to separate, it would seem that the last thing you would want to do is to engage in a process that would be costly, inefficient and likely to increase the rancor between you. Yet, that is sadly what most couples unknowingly do if they believe that they have no option other than to litigate their divorce.

Mediation is a more sane option that is likely to resolve the couple’s conflicts with an emphasis on reaching an agreement that works for the entire family. In mediation, the couple meets with an objective mediator who raises all of the topics which need to be addressed and facilitates a discussion between the couple to reach a resolution. So, what is the difference between mediation and litigation if there is an impasse on a particular issue? For example, let's say the mother wants to stay in the marital residence with the children, but the father wants the house to be sold.

In mediation using the interest based approach, the mediator will first ask questions to make sure that the parties speak in terms of their interests to explain why each is taking his and her position and to make sure that the other person hears and understands it. For example, the mother wants the children to have the stability of staying in their home, but the father wants the money from the sale of the house so he can have a nice home for the children when he has access with them. The mediator can help the parties see that they have a mutual interest in doing what is best for the children, and given that interest, the parties can brainstorm and suggest different possibilities for resolution. These could include selling the house at a future time, dividing the other assets so that the father can have a safe home for the children, the mother buying out all or a part of the father’s interest in the house, or even a nesting agreement where the children stay in the house and the mother and father share time in the house while having small apartments elsewhere. The mediator will then have the parties evaluate these options, and parties will determine what can work for both of them but more importantly for their children.

How would it work in litigation? Since very few litigated cases actually make it through a trial, chances are that your matter would be resolved through attorney negotiations. The mother’s attorney will cite case law and arguments that support her point of view, and the father’s attorney will cite case law and arguments that support his point of view. Typically, there will be lengthy phone calls or extensive letter writing. Maybe there will even be a four way meeting where the attorneys will speak for their clients in terms of rights, obligations and different opinions as to what is likely to happen in Court. Ultimately, one party gives up and the other will win.

Unlike in mediation, the resolution in an adversarial process tends to be that one party benefits at the expense of the other. Aside from the financial and emotional costs of such a process, the result seems unlikely to be better than a result fashioned by the

parties themselves. It will breed resentment from the “losing party,” and even the “winner” may not be happy because of the time it took and the money spent.

Mediation is a much saner approach and tends to result in a mutual agreement which is more likely to be followed by the parties because it is one they themselves designed.