Divorce Mediation FAQ
FACTS ABOUT DIVORCE MEDIATION
People do not get married to get divorced. As a result, your divorce represents a great disappointment to you. In fact, it is this disappointment, and the hurt, anger, fear and sometimes sense of betrayal that you are struggling with, that makes divorce so difficult. It is for this reason that, next to the death of a child or someone else extremely close, divorce is probably the most difficult crisis that you will experience in your entire life.
Until recently, couples wishing to separate or divorce almost invariably turned to separate attorneys to represent them and to negotiate an agreement for them.
In recent years, there has arisen an alternative to adversarial divorce proceedings. It is called Divorce Mediation, and as separating and divorcing couples have increasingly found, it can be a far better way for many to resolve their differences.
WHAT IS DIVORCE MEDIATION?
Divorce mediation, quite simply, is a procedure designed to assist separating and divorcing couples to reach an agreement between themselves, privately and informally. It employs the skills of a neutral, third party (called a mediator) to assist you in arriving at an agreement by providing you with necessary information, clarifying issues, exploring alternative solutions, and suggesting possible compromises.
Most importantly, this professional will ensure that each of you is given an adequate opportunity to express your views, thereby assuring that your interests are properly recognized. In mediation the discussions usually proceed quickly and an agreement is normally concluded in but a matter of weeks. For this reason divorce mediation is usually less expensive than traditional divorce proceedings. Cost is simply a function of time. The less time it takes, the less costly it will be.
Time, cost, and emotional considerations – these are the principal reasons why separating and divorcing couples are increasingly turning to mediation.
WHO ACTUALLY MEDIATES THE DISPUTE BETWEEN THE PARTIES IN OUR OFFICE?
It is a cardinal principle of divorce mediation that separating and divorcing couples are faced with complex personal problems as well as legal questions. At our firm, divorce mediation is conducted by William J. Leininger, M.A., J.D. Mr. Leininger has been practicing Family Law for 42 years and has lectured on divorce and related issues and has appeared on such national television shows as the Phil Donahue Show, Sally Jessy Raphael Show, CBS Morning Show, the NBC Today Show, etc. Mr. Leininger received his Divorce Mediation trainiis a Founding Member member of the Academy of Family Mediators, a national association of Family Law Mediators who subscribe to a strict set of professional standards.
WILL I BE GIVEN INFORMATION ABOUT THE LAW AND WHAT MY AGREEMENT SHOULD CONTAIN?
Mediation is not simply a procedure to assist the two of you to conclude an agreement. It is a process that will help the two of you make informed, intelligent decisions to the end that you are left with an agreement that both of you will be able to live with.
At the commencement of the mediation, you will be given a great deal of verbal and written information to assist you. This material will not only provide you with information about the divorce law of the State of New York or New Jersey – the Equitable Distribution Law, the child support guidelines, incomes taxes, etc. – but will also insure that you are left with a complete proposed agreement, called a Stipulation of Settlement or Property Settlement Agreement, and that there is nothing that you have neglected or failed to include in it.
All of this is done to insure that you will be able to participate in the discussions intelligently and knowledgeably.
WHAT SUBJECTS WILL BE DISCUSSED IN MY MEDIATION?
In Mediation our clients decide four main settlement areas: parenting arrangements (including custody) for minor children; division of marital property; spousal support and child support. The tax consequences of these decisions will also be considered and should be reviewed by an independent tax expert.
WILL THE AGREEMENT THAT IS CONCLUDED IN MEDIATION BE A FAIR ONE?
In mediation every effort is made to conclude an agreement that is fair to both of you, and that each of you can live with. For if it is not fair, it is unlikely to be honored, and will therefore be of no value to either of you. Additionally, a mediator has no power to bind you, and unless an agreement is reached which you feel is acceptable, you will not sign it.
WILL THERE BE FULL DISCLOSURE IN MEDIATION?
In contrast to traditional divorce proceedings – where the parties meet privately with their attorneys, and where all disclosures are kept secret and confidential – in mediation all discussions take place with both of you present. That means that “openness” and “honesty” are encouraged. Moreover, each of you will be required to provide the other with whatever information either of you considers necessary.
Finally, both of you will complete a detailed list of the income and assets, and a representation that this information is complete and accurate.
WILL MEDIATION RESULT IN A LEGALLY BINDING AGREEMENT?
Once all of the outstanding issues have been resolved, and a tentative agreement concluded between you, we will reduce that understanding to a written document, in draft form, called a Stipulation of Settlement in New York or a Property Settlement Agreement in New Jersey.
We will supply you with the names of a number of matrimonial attorneys willing to finalize the agreement, put it into proper legal form and obtain an uncontested divorce at a very reasonable fee.
IF WE ARE SEPARATING BECAUSE WE CAN’T GET ALONG, OR COMMUNICATE WITH ONE ANOTHER, HOW WILL WE BE ABLE TO PARTICIPATE IN MEDIATION?
The hurt and disappointment that married couples feel at the time of their separation obviously makes communication between them difficult. But it does not make communication impossible – it only makes it impossible for them to do it alone.
As couples are increasingly learning in mediation, they really can discuss these issues intelligently between themselves – if they are only given the right setting, and the assistance of trained professionals to help them where they have difficulty. It is exactly this setting and this professional help that mediation offers.
WHAT IF ONE OF US WANTS A DIVORCE AND THE OTHER DOESN’T? HOW CAN MEDIATION HELP?
It is quite possible (and this is very often the case) that one of you does not want the separation or divorce. This does not mean that there will not be a divorce however. It only means that it may well be a bitter or costly one.
Part of our job is to bring home this fact. If you are having difficulty with the separation, you have a choice – you can learn to accept it and participate in the discussions, as difficult as that may be, or you can refuse to do this and force proceedings which you really do not want and which you may not be able to afford.
It is this kind of help that a Divorce Mediator can constructively provide. And it is this kind of pain that we can help you avoid.
WOULDN’T I BE BETTER OFF IF I HAD A LAWYER TO FIGHT FOR ME AND TO PROTECT MY INTERESTS?
As Derek Bork, the former Dean of Harvard Law School, recently observed, lawyers do not add to the size of the pie, they simply fight over how to divide it. Thus, if you hire a lawyer to fight for you, you will not come away with a bigger pie. You will not even necessarily come away with a bigger piece of the pie. On the contrary, if you both hire lawyers to fight for you, about the only thing that you are guaranteed to get is a good fight.
It is usually not in your best interests, and certainly not in the best interests of your children, to have such a fight. Rather, it is in your very best interests to conclude an agreement that is fair to both of you without lengthy and expensive matrimonial litigation.
WHY IS MEDIATION BEING USED BY MORE AND MORE SEPARATING AND DIVORCING COUPLES?
As couples have increasingly come to realize, while divorce may end their marriage, it does not necessarily end their family.
Rather, they will need to do business together, often for years to come. (It is for this same reason that mediation is so popular in resolving disputes between labor and management.) Thus, it is not only important to resolve the dispute between the two of you, it is also important to resolve it in a way that will leave you able to work with one another (and cooperate with one another) in the future.
HOW DO WE BEGIN DIVORCE MEDIATION?
If after reviewing this website, you and your spouse both feel that Divorce Mediation might make sense to the both of you, then you should call our office and advise our receptionist that you wish to schedule an initial orientation session for Divorce Mediation. This orientation session takes approximately one-half hour and is Free of charge! At the conclusion of that orientation session, the two of your will then have three choices.
First, if either of you decides that Divorce Mediation is not for you, that ends the matter and neither of you have any further obligation to our law firm.
On the other hand, if both of you wish to proceed to Divorce Mediation with either Mr. Leininger will then schedule your initial Divorce Mediation session, generally within a week after the orientation session. You will be given a Retainer Letter and will be asked to sign it along with a Retainer of $2,500. This Retainer is refundable to the extent not used.
The third option is for the two of you to simply advise our firm that you wish to think over the whole process, which is also fine. Once the two of you decide to proceed, you will then call our office and advise our receptionist that you now definitely wish to hire our firm and they will schedule the first regular Mediation session.