Christine Hickey, Esq.   120 East Washington Street, Suite 711, Syracuse, New York 13202   (315) 422-9756

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What is Divorce Mediation? 

Mediation is a private and dignified way to negotiate the terms of a legally enforceable Agreement with the help of an impartial third party who works equally for both of you.  

Mediation is a cooperative approach and differs from other approaches for dealing with changes in the family.  Rather than hiring an attorney to speak on your behalf or enlisting a court to make decisions about your life, in mediation you are given the opportunity to talk and think through the options in a non-threatening, creative and professional (though comfortable) environment.  When both you and your spouse or partner are interested in finding solutions that satisfy everyone concerned, mediation is a sensible approach. Though bad feelings do not necessarily go away in mediation, you will be working on practical solutions that can help decrease conflicts now and in the future.  

By discussing issues together with your spouse or partner and the mediator, you avoid the stress and cost associated with litigation. Your mediator will guide you through the issues to be resolved and a wide range of options for addressing your circumstances.  You, your spouse or partner, and the mediator will discuss the pros and cons of all the options, and only after fully understanding your choices will you make decisions that will be included in your Agreement.

People who mediate their Separation Agreement do not need to be in agreement about anything, or even to have discussed anything prior to attending a mediation session.  People who are in complete disagreement can and do benefit from mediation.  Indeed, mediation is used to help people to bridge differences.  Individuals can have very different perceptions and ideas about what is fair.  Bringing those ideas and perceptions into the light and brainstorming alternative options is part of the job of the mediator.

If people genuinely wish to be separated they will consider alternative ideas, alternatives to exactly what they want in order to reach resolution - this is a necessary part of any negotiation.

The mediation process helps you organize your thoughts and maintain control over decision making.  You move at your own pace so that you have energy to give your children, work and other areas of life.  To obtain a fair Agreement or to create a positive plan for change, you will work to keep the channels of communication open, accept differences in perception, and be mindful of the value of maintaining positive relationships for your own sake and that of your children.

Overview of Divorce Process

Once the Opting Out/Separation Agreement has been signed, either person may commence an action for divorce.  This involves commencing a lawsuit in which one person (the plaintiff) sues the other (the defendant) for divorce.  Effective October 12, 2010, New York State allows an action for divorce to be commenced on any of the following grounds:

• The cruel and inhuman treatment of the plaintiff by the defendant.
• The abandonment of the plaintiff by the defendant for a period of one or more years.
  
• The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
  
• The commission of an act of adultery as defined by Domestic Relations Law Section 170 (4).
  
• The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
  
• The husband and wife have lived separate and apart pursuant to a written Agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such Agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.  Such Agreement shall be filed in the office of the clerk of the county wherein either party resides.
  
• The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.  No judgment shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
  

Source: New York Domestic Relations Law Section 170.
The last ground (under #7 above) is informally considered the “no-fault” grounds for divorce in New York.

When you file for divorce it can either be contested or uncontested.  A contested divorce means that one person is disagreeing with some aspect of the divorce.  It may be an issue about your parenting plan (custody and visitation), support (child support or spousal maintenance), equitable distribution (division of assets and debts), or the grounds for divorce.

An action for divorce is considered uncontested when all the issues are resolved including which grounds for divorce will be used. When an action for divorce is uncontested, the defendant will allow the divorce to be granted by the Court without objection. You have the option to either hire an attorney to prepare the divorce papers that must be submitted to the judge in order to obtain a divorce, or you may prepare the divorce papers yourselves.  New York State provides the public with divorce forms that contain all the forms that need to be completed and filed with the court along with a copy of your signed and executed Opting Out/Separation Agreement.

The Role of Lawyers

Lawyers participate in the mediation process by providing you with legal advice and by reviewing the proposed Agreement along with other documents that are written in accordance with the decisions you reach in mediation.  Seeing an attorney before attending mediation is perfectly appropriate.  In fact many attorneys like to see their client before the mediation begins so that the client is aware of their rights and obligations during the negotiations in mediation.  Consulting with your attorney during the mediation is also appropriate.  Using your attorney, accountant, financial advisor, therapist or other helping people before, during and after the mediation, as you see fit, is your right and can be extremely useful in helping you reach a resolution.  

A mediator can give you legal information and ideas about what has worked for others but do not give legal advice in favor of one party and against the other.  Independent legal counsel for each of you is important to be sure you fully understand all your rights and obligations.  Your attorney who studies the Agreement from your individual point of view, while keeping in mind your objectives for being in mediation, is best suited to advise you.

Financial Benefits

Pay as you go & drafting deposit:

At CNYMSI, you will not be paying an initial up-front deposit for services.  Instead, at the end of each mediation session, you will pay for the time you were together with the mediator that day.  At CNYMSI, the hourly rate is based on a sliding scale associated with your combined gross income.  

After you have made all the decisions and the Agreement can be written, you will be making a drafting deposit based on the sliding scale.

Go at your own pace:

When you mediate the terms of your Separation Agreement, you will be scheduling appointments with the mediator based on how quickly or leisurely you would like to move through the process.  At CNYMSI, you will be paying for the mediator’s services as they are provided which allows you to spread out the costs over a time period that is comfortably affordable to you.  

Use of one neutral third party (the mediator):

Rather than having two attorneys who represent each of you to negotiate your Agreement, in mediation you will be working with one mediator to facilitate your negotiations. Instead of two clocks ticking (one for each attorney), there is only one (the mediator’s).

CNYMSI strongly recommends that you each have an attorney who will review the proposed Agreement and advise you about its contents before it is signed. When you are consulting with your attorneys, the mediator is generally not performing any work on your behalf.
 
Use of experts:

In mediation, when an expert such as a pension valuator, appraiser, business valuator, or degree valuator is necessary, mediation participants mutually agree upon the expert and hire one person to work for both of them in an impartial capacity. In this way, you can avoid hiring two experts with competing interests thereby avoiding duplicative costs.   

If mediation is not successful:

If you begin mediation and do not complete the process, you may decide to hire your own attorneys to represent you.  In this case, you will have spent some money on mediation and will then incur the expense of attorneys in negotiations and/or litigation.

Fees for the divorce:

After the execution of your Agreement, if you decide to file for divorce, you will incur filing fees at the County Clerk’s Office and if you hire an attorney to file, you will incur attorney’s fees for the preparation of your divorce papers (unless you prepare them yourselves).  These services and costs are not included in the mediation process at CNYMSI and would be incurred whether or not you arrived at the terms of your Agreement in mediation.

CNY MEDIATION SERVICES, Inc.
Divorce Mediation, Syracuse, New York
120 East Washington Street, Suite 711
Syracuse, New York 13202
(315) 422-9756 Phone (315) 479-5651 Fax
mchickey@a-znet.com
Website by Cristin Manfredi and Content by Christine Hickey
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