Traditional Divorce, Mediation, and Collaborative Divorce
Some clients have been asking lately, “What is the difference between a regular traditional divorce and divorce mediation or collaborative divorce?”
What is generally advertised with mediation is a way to transform a contested divorce into an uncontested divorce. A contested divorce is any divorce where the spouses cannot agree on one or more issues, such as whether alimony should be paid, how often and when visitation should be, Etc. If the spouses can agree on all issues then the divorce is uncontested. The concept with mediation is that by having both spouses sit down with a neutral third-party mediator they can maybe reach an agreement, and thus, have an uncontested divorce.
The mediator is often an attorney who tries to get the couple to find common ground. It is important to remember, however, that even if the mediator is an attorney he or she is not in a position to give you legal advice. Remember the mediator is trying to force an agreement so he or she may push things in one direction or another. The mediator is looking for that soft spot, where you or your spouse will give in on an issue, so they can close the gap between you and get an agreement. The problem with this process is that, unless an attorney represents you, such agreements are often one-sided. Even a one-sided agreement can be touted by the mediator as a successful mediation, simply because an agreement was reached.
Obviously, if the mediated agreement is one-sided in your spouses favor, the process is not favorable to you. Yet, even if the initial agreement is in your favor, the process still may not work out for you in the end. This is because regardless of the time and money that goes into mediation, one or both spouses will almost always consult an attorney later. So, your mediation experience may play out like this: you and your spouse spend time and money painstakingly going through mediation sessions. Eventually you both reach some sort of agreement, only later to find out that either the agreement is one-sided against you or that your spouse consulted an attorney and has reneged on the agreement.
Remember, a mediated agreement is non-binding, meaning either party can back out. Usually, after consulting with an attorney, one party will want to back out of at least one part of the mediated agreement, at that point, the whole agreement usually goes out the window. Once one party backs out of one aspect of the agreement it can often have a cascading effect resulting in many more issues being renegotiated. This can actually make the divorce process more contentious as the other party may resent their spouses decision to back out of the deal.
Before reaching a mediated agreement it is important to acknowledge that the relationship dynamic between you and your spouse can create an uneven playing field. Divorce is usually an emotional experience and this can interfere with your thinking. Realize, that although he or she might be quite friendly and sympathetic, the mediator is just trying to get you and your spouse to reach some type of agreement and is not there to represent or advise you.
If you have not consulted with an attorney you are probably not fully aware of what your legal rights and responsibilities are. It can be complicated applying New York law to your unique situation. Even the mediator will advise you and your spouse to consult an attorney before finalizing the agreement. If you are considering divorce, you should realize that there is no substitute for having an attorney advise you of what your rights are under the law and what outcome the courts will generally favor. If you do enter into an agreement and later realize that you made a mistake, you might be stuck with it.
Generally, you and your spouse are well advised to each find and consult with an attorney before considering any type of mediation. If you and your spouse are able reach an agreement, with the benefit of the advise of an attorney, there will be no additional step to derail the process, and you may find that it is actually easier, less expensive and, in the end, a smarter way to go about it overall.
