1. Do I still need a consulting attorney?
Your mediator, although an attorney, does not represent either of you. He doesn’t give you legal advice. Some people elect to proceed without a consulting attorney. However, it is always a good idea to consult with an attorney before entering into a legally binding document to ensure that you fully understand the legal consequences and their impact on you.
2. How much does it cost?
Generally speaking, litigation will cost from three to ten times as much as mediation. The monetary cost is measured in dollars, which directly reduces the size of the estate being divided. The emotional cost is measured by each individual. The adversarial battle in litigation exacts a huge toll on the parties and their children.
3. How long does it take?
Typically, there are four to five meetings lasting two to two and one-half hours and spread over two to three months. The timing of these meeting is usually dictated by what information needs to be gathered or what work done before the next meeting. The goal is to go as far as possible in a session. There is frequently reach a point where no further progress can be made without more information, such as the value of the house, or details of the pension plan. After identifying what is needed to move forward, each party will be given a “homework” assignment to gather information before we reconvene. If you have all of your information together, the meetings can be scheduled quite close together. If not, you may need to wait for a real estate appraisal or business valuation before taking the next step.
4. Why can’t we do the whole thing in one session?
You will be covering a lot of information in each session. It is important for people to step back and think about it periodically to be sure that they understand and agree with the course being taken. A lot of ground can be covered in two hours, and it is easy to reach information or emotional overload. Remember, the goal of mediation is to reach a joint agreement which works for both of you. Coercion and duress have no place in mediation, and I will make sure that no one is being coerced or pressured into making an agreement against their will.
5. Why wouldn’t I just want to let the judge decide?
Over the course of the mediation, you will be spending many hours with the mediator, discussing all aspects of your divorce case. No one will limit the time you need to explore all possible solutions before agreeing on one. In mediation, you can think creatively and make an agreement which the judge couldn’t order at court. Most litigants don’t realize that the judge’s power is really quite limited, and there are many solutions which may make perfect sense for your case, but which exceed the judge’s jurisdiction. Also, while I will spend a number of hours with you and your spouse getting to know all aspects of your case, the judge doesn’t have that kind of time. You are lucky to get an hour or two with the judge. If you aren’t successful at mediating your divorce with the assistance of a neutral mediator, a stranger in a black robe, who knows much less than the mediator does about you, your family, and your estate, will be imposing a decision on you.
6. Can I bring my attorney with me?
If you wish, you can bring your consulting attorney with you, or you can consult with your attorney between sessions and take any agreements to the attorney to review before making a commitment. Some people feel more comfortable with their attorney in the room. The other side may also bring their attorney if they wish. However, if you elect to bring attorneys, this will not be allowed to turn into an adversarial proceeding. It is still mediation, even if attorneys are present.
7. If I agree to mediation, does that mean my spouse will be able to push me around? No. One of the first things a mediator is trained to do is to be sure that the parties are operating on equal footing.
8. Why do I have to make all the financial disclosures in mediation? Isn’t it supposed to be more informal than court?
It is more informal than court. However, the integrity of any mediated agreement depends on each party having full disclosure of all relevant information before consenting to the agreement.
9. Who does the paperwork for the divorce?
That decision is up to you. You and your spouse can do it, or one of your consulting attorneys can do it.
10. Isn’t it easier for my spouse to hide assets and information in mediation?
No. You each have all of the same disclosure requirements in mediation as in litigation. One of the first things that will happen in mediation is the exchange of all relevant information, and the creation of a process to obtain and exchange any additional information which you haven’t obtained yet. There is generally no formal discovery, as information is exchanged informally. If that exchange of information doesn’t happen, you should return to a more formal venue where you can enforce your rights to obtain all relevant data.
11. What causes delays in mediation?
Most delays are caused by people not doing their homework assignments . If they have gone as far as they can without additional information, and they don’t get that information before the next session, valuable time is lost. Sometimes there is a good reason to delay, such as holidays and vacations, preservation of health insurance if someone is ill, or tax considerations.
12. What can I do to make the mediation most effective?
Provide all information promptly and completely. Make sure you do your homework assignments between sessions. Much valuable time is lost waiting to get information or documents from third parties or institutions (banks, credit card companies, etc.). The more of this you can gather at the outset, the more efficiently you will use the mediator’s time.
13. What does the research on mediation say?
There have been many studies which clearly show that mediated divorces have long term positive effects on the parties and their children. The use of a non-adversarial process helps the parties learn to work together and communicate with each other, not only to resolve their divorce issues, but future issues which may come up…and if there are children, future issues will come up. Studies which compare mediated divorces with adversarial ones consistently demonstrate that the mediating parties took less time, spend less money, were more satisfied with the results, and were more likely to comply with the agreements reached. Since enforcement is always a potential problem, this is a particularly significant benefit of mediation.
Divorce Mediation is the sensible and sane way to settle your divorce case at a reasonable cost. Contact Marc P Feldman at 973-267-7555 to find out more about Divorce Mediation.