There are so many issues that a divorcing couple must face–how to tell the children, where will each live, whether or not they can afford to live separately–starting mediation can easily add to the apprehension.

I believe, however, that beginning mediation can actually be a positive step toward gaining control of your changing circumstances. The two of you set the timetable, the agenda and, of course, the outcome.

There are concrete issues that need to be addressed, and as each is discussed and resolved, parties can feel that they are one step closer to moving onto the next stage of their lives. I provide my clients with a checklist of issues which need to be addressed by them in a Separation Agreement, and to the extent that their discussing them on their own is helpful, then by all means I encourage them to do so. For example, most couples will discuss their ideas on a parenting plan before they begin mediation.

In terms of financial issues, I suggest that clients each begin thinking in terms of a budget for their likely future circumstances. Will they be living in a rental, staying in the house or buying a new home? Parties to a mediation should have an idea of what those costs will be so they can properly draft a budget.

It is also helpful to get the financial documents required to have a meaningful discussion on the financial aspect of your divorce in place before beginning the mediation, such as income tax returns, current pay stubs, bank and investment account statements, retirement account statements and the like. The more prepared a couple is for the mediation, the less time and money will be spent in the mediation estimating income and assets.

Like many of my colleagues, I use a financial software program which permits clients to download a client version of the program at no cost. I ask clients to enter their financial information in the program and then send it to me. I can then print out their budgets and lists of assets and liabilities. They can then make changes and revise their budgets as necessary.

Because cost is always a factor for couples facing divorce, the mediation will be more efficient if all of the information is available at the time that you are having your discussions, so it makes sense to be prepared.

Even though mediation is a process in which the parties themselves make an agreement that works best for them and their family, I have yet to meet clients who are not interested in or choose not to be informed as to what the law provides.

As a mediator, I think it is important for clients to know what the law provides and what might happen if a court were to determine the outcome of their divorce because I feel it is impossible for them to waive a right without knowing what that right may be. The only problem is that there is a plethora of cases in which opposing attorneys are fighting over what the law provides, so usually I give my clients the law as a range of possibilities or let them know what might be a likely outcome but stress the uncertainties that are inherent in the court process.

Of course, I do not and cannot give legal advice to either or both of the parties since that is well beyond the role of a mediator. Instead, I provide objective legal information so they can make decisions knowing the impact of the law.

I will then emphasize to them that they are free to explore many other options to reach a resolution that is particularly suited to them. I consider the application of the likely outcome if they were to go to court as but one of the choices before them, and in my experience, clients tend to achieve a result that is similar to that which may occur in court but will have been tweaked to meet their particular needs. Moreover, if a client chooses to waive what would be considered a right under the law, I will explore the reason why to insure that they are doing so with full understanding of his or her right while respecting their right to determine the outcome of their divorce.

As a mediator, I do not insist that my clients use review or consulting attorneys as a matter of course. I feel that the self-determination of the clients in mediation is paramount and that this extends to the decision of whether or not he or she retains an attorney. However, I do recommend that clients seek the advice of an attorney at the very least before signing a Separation Agreement because I think that it is important for clients to get the kind of legal advice that a mediator is not permitted to give.

Also, on very rare occasions, I will insist that a client consult with an attorney if I feel that the person is not understanding the ramifications of an agreement or if I feel that the validity of the agreement might be in question if the person does not have independent counsel.

For the most part, however, I think that if a party to a mediation understands the terms of the agreement, his or her rights under the law and the consequences of executing the agreement, the choice of whether or not to retain counsel lies with the client.

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.