Divorce Mediation: Does it Really Save Time, Stress and Money?

Oftentimes, couples who seek amicable divorce proceedings or a legal separation are drawn to the concept of divorce mediation. I often get calls inquiring as to whether I handle divorce mediations myself. While most any experienced divorce attorney can obtain the required certification to become a divorce mediator many do not. 

Before it became all the rage to do divorce mediation or collaborative divorces there were uncontested divorces and contested divorces. Uncontested divorce was the original collaborative law/divorce mediation. In the best case scenario, it meant that there were either no open issues or minimal issues regarding marital property, custody, parenting time/visitation, child support and the like. The parties would either contact a divorce lawyer and let him or her know how the documents should be drafted or advise that the spouses were on good terms and wanted to resolve the divorce amicably. In those instances, both parties would hire their own attorneys who would work in conjunction, while representing the interests of their individual clients or one party would hire an attorney to negotiate and/or draft the divorce agreement, while the other party would remain pro-se or hire an attorney simply to review the documents and make sure everything was kosher. 

Somewhere down the line, in a way to circumvent the rule that no one divorce attorney could represent both parties in a divorce matter, the concept of divorce mediation was born. Divorce mediation was designed to service amicable spouses who were ready to work together and reach a fair settlement agreement. It was meant to streamline the process and save the parties money by paying only one divorce lawyer, instead of two. Now, it’s become a signal between spouses that they will “do the right thing” when it comes to negotiating terms of a divorce settlement. But how effective is mediation and does it truly save the parties time and money? That depends. 

Advising Clients of Their Legal Rights 

In order to have meaningful negotiations both parties must feel secure knowing that they have been properly advised of their legal rights and the likely outcomes of their matter, whether it be about equitable distribution of marital property, spousal support/maintenance, child custody (legal custody and physical custody) or child support. An effective divorce mediator, just like an effective divorce attorney, will be able to provide the proper legal guidance. 

Advocating on Behalf of Clients 

It’s promising when parties to a divorce proceeding believe they can reach a resolution without the need for court intervention. It’s optimistic at best to think a divorce matter can be navigated completely free of conflict. Cracks in the pavement begin to show when a disagreement arises during divorce mediation, which requires advocacy. A divorce mediator is capable of providing the most likely outcome of each issue to both parties, with the hope that the parties will agree with the standard or meet somewhere in the middle. But what happens when there is grey area in the law and the “right” response isn’t exactly clear. 

For example, let’s say the parties have children and the question of child support arises. In New York, there is a cap placed on combined income over the amount of $154,000.00. In order to go over the amount the custodial parent would have to demonstrate a need. If the parties earn significantly more than the cap, if the children have a higher standard of living or if the children have any sort of special needs, the court may order child support over the cap. Of course, the custodial parent would seek to go over the cap, whereas the noncustodial parent would seek to apply the cap. Going over the cap has long term effects that are nearly impossible to reserve down the line. Will the parties be satisfied with meeting in the middle? Or will each party want an advocate to negotiate their position zealously? A divorce mediator can help you meet in the middle, but only an individual divorce attorney can advocate on an individual’s behalf. 

So, what happens if negotiations stall? 

If parties who are amicable choose to hire individual divorce lawyers to help settle their matter, the attorneys generally spend some time engaging in communication meant to reach a divorce settlement without the need for court intervention. The attorneys will likely have each of their clients prepare financial disclosure documents, like Statements of Net Worth, that will be exchanged as a basis for reaching terms of a divorce settlement. 

After significant efforts have been exerted and enough time has passed, if the divorce lawyers feel that a settlement cannot be reached the parties then have the option of filing a Request for Judicial Intervention and Request for Preliminary Conference, which will secure the spouses a court date. Each party will have already secured his or her own legal representation for the divorce proceedings and the matter can proceed seamlessly. 

Unfortunately, if a divorce mediation stalls and the parties are unable to reach a settlement the parties are forced to start from scratch. The divorce mediator is barred from representing one or both of the parties in the divorce proceedings, as there is now a conflict of interest. Both parties must either decide to become self-represented or each hire a new divorce lawyer to represent them in the divorce matter. This may very well mean spending double the amount of time and money initially anticipated. 

Is it really cheaper or more efficient? 

Much like any divorce lawyer, your divorce mediator is likely billing you based on his or her time. Just like a standard divorce lawyer, a divorce mediator will likely require that you enter into a retainer agreement and pay an initial retainer fee based on the amount of time the mediation attorney estimates he or she will need to reach a final divorce settlement. If everyone does exactly what is expected there is a chance that mediation may be cost effective. Unfortunately, there is no way to tell the future or to force another person to act appropriately. When it comes to money and emotions there is no telling how people will act. 

When the spouses finally agree on the terms of settlement, the divorce mediator may draft an agreement and advise that the parties have the divorce agreement reviewed by representation of their own choosing. Even when the divorce agreement is signed, there is still more work to be done. Although the divorce settlement generally means the hard work is behind you, the court requires a series of documents to be filed in order to finalize the divorce. These documents must be prepared and filed by either the Plaintiff’s attorney or the Defendant’s attorney. They cannot be filed by the divorce mediator. Unless one of the parties wants to take on the challenging task of drafting and filing these tedious documents on their own, he or she will likely have to hire another divorce lawyer to help finalize the divorce. This may mean that the parties will end up with their own individual divorce attorneys after all. 

It is completely possible to settle a divorce or separation amicably without the need or risks involved with mediation. Find yourself a skilled, reasonable attorney to protect your individual interests and have your spouse do the same. Encourage those attorneys to work together and help you reach a resolution. Remain rational yourself, and if the unexpected happens you don’t have to skip a beat in the event of the unexpected.

If you have any further questions please feel free to reach out for a free consultation.