Mediation Resources

What Is Mediation? What Is Divorce Mediation? 

By Carolyn Zenk, Attorney at Law, Certified Mediator Touro Law School 

Director East End Mediation Center, 143 West Montauk Highway, Hampton Bays, New York 11946. Office Phone: 631-723-2341

Goal of Divorce Mediation

The goal of divorce mediation is to peacefully prepare a separation agreement for a couple with all the terms that would be in a divorce. The couple usually retains a divorce mediator/attorney together and splits the expenses on an equal or a "pro rata" basis, i.e. as a percentage of each spouse's income to the combined income of the couple. For example, if one spouse makes 60% of the couple's combined income, that spouse might pay 60% of the Mediator's fee.

Expectations of the Mediator

The couple is required to pay a retainer, which may range from a few hundred dollars to several thousand dollars, depending on the complexity of the case, and to sign a retainer agreement when the couple initially meets with the attorney/mediator.

This is standard practice. In fact, a signed retainer is required by the Lawyer’s Code of Ethics. You are entitled to fully understand the retainer agreement and ask your Mediator about it before you sign it. 

Procedure / Setting

The couple usually meets together at the attorney’s office and avoids the stressful atmosphere of the courtroom. The divorce mediator will usually explain the rules of engagement at the first meeting. The Mediator will explain her hourly rate and what that rate includes. Lawyers generally charge for meeting with them personally, talking with them on the phone, speaking with experts and others on your behalf, and drafting documents. The only things lawyers have to sell is their time and expertise.

Hourly Rates for Attorney / Mediators

The hourly rates for attorney/mediators range from $325 an hour to $450 an hour. My firm charges $325 an hour at the time of this writing and sets a cap on the overall price for the mediation, which is never exceeded even when hours and hours of additional work are required to complete the separation agreement.

For reasons unknown, New York State allows lay people to mediate divorce agreements, so long as they do not advise clients on the law. Advising clients would constitute the unauthorized practice of law. The law is complicated. It is advisable to get competent advice before making critical decisions involving your children and/or your worldly goods, which will affect you for years to come. It is simply not advisable to hire lay mediators because expensive mistakes can and often are made. 

The First Meeting

I usually explain the mediation process to my clients at the first meeting. I go over the law with respect to divorce, child custody, child support, visitation, and maintenance with them. I acquaint my clients with the statutes that the judges themselves use.

I always give my clients a copy of the applicable statutes so that they can study the rules for themselves. This gives them a great edge in understanding their own mediation process and rights. I generally ask them to assemble important financial information. If they have children, I ask them to work out an acceptable visitation schedule, after being briefed on how courts usually handle this issue. This usually involves looking at their work schedules and their children's calendar for the school year, which sets forth the various school holidays.

Second Meeting

At the second meeting, I usually ask the clients about their circumstances, for example, their health, current employment and work history. We talk about the number of children they have, the custody arrangement they would like, and a possible visitation schedule.

Mediation issues generally cover: the division of marital property, i.e. in New York this would be "equitable distribution" or fair distribution of property acquired during the marriage, which is not "separate property", which property is considered “separate property" and need not be shared with the other spouse, and issues involving children, if any.

We discuss the test for child custody in New York (BIC Test: The best interest of the child Test) and the factors courts consider to determine residential or physical custody. We discuss visitation preferences and the couple’s schedule. We talk about health and life insurance, college, and spousal and child support.

We discuss the presumptive post divorce maintenance formula in New York. Then we discuss the respective circumstances of the couple to determine whether either spouse would be a candidate for spousal support (maintenance, once known as alimony).

The couple usually has a lot of questions, which I answer. If I do not know the answer to a legal question, the couple can commission a legal memo to get an idea of how the courts are currently handling the issue that concerns them. In this way, they have a context to determine whether or not a proposed solution to their problem is fair.

Procedures in General

Both spouses meet in the comfort of my law office. Each member of the couple is given an equal chance to speak. I usually allocate a specific amount of time for each spouse. During that time, the other spouse is directed not to interrupt their partner. If it is in the couple’s interest, and they agree, I talk to each member of the couple separately. If one spouse is given private phone time, the other spouse is usually given equal time.

The Mediator’s Ethical Obligation

A mediator must act neutrally and cannot favor either side when mediating a separation agreement unless both spouses, fully understanding their rights, wish to favor one spouse over another. Even in such a case, the separation agreement cannot be "unconscionable" i.e. so unfair that it would "shock the conscience of the court."

The separation agreement cannot be grossly unfair or it can be stricken down by a court. Since this is the rule of law, couples can be confident that a given mediation agreement cannot be lopsided.

If one member of the couple decides not to continue to mediate, the mediator cannot represent either side in a litigated divorce since this would be a conflict of interest. 

How Long Does the Mediation Process Take?

Mediation takes about two hours a session; sometimes a double session may be held. Several sessions are required. Four to six sessions are usually sufficient depending on the complexity of the case.  I am currently producing a video on the Domestic Relations Law applicable to all couples to shorten the time needed to complete an agreement.

I ask the couple to fill out a “net worth statement” after the first or second meeting to get a basic idea of the assets involved in the marriage and their appropriate distribution.

This statement sets forth the respective financial circumstances of each party. The courts require this during divorces. I ask the couple to provide independent proof of salary, bank accounts, and pension information just as a Court would. In this way, both spouses can be assured that financial figures have a basis in reality. East End Mediation Center is a higher end, more reliable service, because it includes a thorough briefing on the Domestic Relations Law and some discovery involving looking at the couple's actual documents rather than relying solely on a verbal intake as many practitioners do.

Are There Separate Costs or Appraisals?

It may be necessary to appraise certain marital property during mediation. For example, the marital home may have to be appraised. Pensions may have to be appraised. These services are conducted by qualified experts like licensed appraisers who answer directly to the couple. Their charges are separate and not included in the mediation fee. The mediator can help oversee this process to make sure it is fair. To ensure fairness and avoid unnecessary expense, I usually recommend that the couple jointly hire appraisers to value houses, pensions, and businesses.

The mediator advises that these appraisals be conducted by independent experts. However, sometimes couples, who feel they have the necessary expertise,  choose to place a value on their assets themselves.

Drafting a Separation Agreement

Once the mediation is complete, the Mediator drafts the separation agreement. I always send the draft to the couple. The couple reviews it to make sure it reflects their wishes. The Mediator may identify additional issues that need resolution and call the couple to discuss these issues over the phone or ask that they return for another session.  The draft agreement can be redrafted in the couple sees the need for this.

Use of Your Own Legal Counsel During Mediation

Each member of the couple can seek independent legal advice before signing the separation agreement. Mediators often encourage this. Your counsel can also advise you as you are going through the mediation process. He or she may write or call the Mediator to discuss matters, which are important to you.  To keep the mediation affordable, I usually limit the input of outside counsel to one two-page letter and one-half hour call to my office.

Once each party signs the separation agreement it is binding contract upon him or her.

How Long Must a Couple Remain Separated Before They Can Divorce?

New York law requires that the couple live pursuant to a separation agreement for a minimum of one year. It is New York State's policy to encourage reconciliation by requiring that spouses live separate and apart pursuant to a separation agreement for a minimum of one year.

One advantage of remaining in a separated status during this time is that the couple can continue to use the health insurance of one of the spouses without additional charge. At the end of the year, the separation agreement can be converted into a divorce if and only if the couple has abided by it for the full year. At that time, one spouse may need to seek new health insurance.

Are You Divorced Once You Sign a Separation Agreement?

 For most practical purposes, you are as good as divorced once both sides sign a separation agreement.

A separation agreement is a contract, which contains what a divorce will ultimately contain, including division of marital assets, division of debts, where each spouse will live, determinations of what is separate property, how marital property will be divided, custody of the children, visitation schedules, maintenance (if applicable), and child support.

However, there are a few notable exceptions. For example, you cannot remarry during the year of separation.

Issues Handled During a Mediation

The separation agreement handles the following issues: child custody, child support, custody, visitation, health insurance, life insurance, a determination of property, which does not have to be shared (separate property), fair division of marital assets and debts based on each spouses' assets, income, and circumstances, and possibly, but not necessarily, spousal support.

The couple can mediate any issue that concerns them. For example, the issue of who is to pay for college may be mediated or whether each spouse is required to live within a certain distance of the other spouse or the children.

Advantages of Mediated Divorces Over Litigated Divorces

 A mediated divorce has tremendous advantages over a litigated divorce, which tends to be much more expensive and contentious. See my article on this web site concerning, "Ways to Divorce in New York."

Where spouses are not willing to be reasonable or are dishonest about their income or assets, a litigated divorce may be necessary.  When one parent has engaged in abuse, litigation may be necessary. However, for the vast majority of cases, a mediated divorce by a qualified attorney is the best way to go, especially a higher end mediation process, which includes fully explaining the Domestic Relations Law to the clients and which involves reliable professional appraisals for pensions, houses, and businesses, where necessary, looking over net worth statements and reviewing the couple's paperwork. These additional safeguards are well worth the additional expense.

A high-end mediated agreement like those prepared at the East End Mediation Center, compares extremely favorably to litigated divorces, which often unnecessarily waste family' assets. Worse, litigated divorces can unnecessarily destroy the happiness of the spouses, as well as the children. 

Mediation helps preserve both the happiness of the family and their financial resources. It preserves the relationship bond so critical to raising your children together in peace. Your children will bless you for engaging in it.

The above article represents my opinion and should not be construed as legal advice.  The law continually changes and evolves. A couple should seek the skills of an attorney to determine how the law will apply to them, given their individual circumstances. 

Call Carolyn Zenk Attorney & Director of the East End Mediation Center at 631-723-2341 weekdays nine to five.