How does Divorce Mediation and Collaborative Divorce work in New York?

Katherine Eisold Miller

Answered by:
Katherine Eisold Miller

Located in New Rochelle, NY
Miller Law Group

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Divorce can be emotionally painful and financially draining. When children are involved, divorce can be even more heartbreaking and frustrating. Whether you are the spouse choosing to end the marriage or not, you have some important decisions to make early on that will have a huge impact on the path your divorce will take, how you will feel about it and how much it will cost. The most important of those decisions is the choice of "How?" How will the decisions that need to be made, get made? Will you leave it up to a judge? Or will you and your spouse try to resolve these issues between yourselves? Often times, people facing divorce have no idea of the appropriate first steps and this can be very scary.

There are essentially three possible routes you can take to a New York divorce. The choices are:

Collaborative Practice. Collaborative Practice is a voluntary process that supports divorcing couples to resolve all relevant legal, financial and parenting issues on their own terms without having to go to court. Each member of the couple works with his or her own collaborative attorney throughout the process. The couple meets in a series of in-person sessions with their collaborative attorneys, who cofacilitate their discussions. Collaborative cases are interdisciplinary in nature and often include financial experts and/or mental health professionals as part of the collaborative team. These professionals assist the divorcing couple, both during and outside of settlement meetings, to effectively resolve complex financial and/or parenting issues and help with difficulties in communicating effectively.

Mediation. Mediation is also focused on helping a divorcing couple resolve all relevant legal, financial and parenting issues without having to go to court. The couple meets in a series of in-person sessions with a neutral mediator to facilitate their discussions. Each member of the couple should consult with an outside attorney during the mediation process for legal advice and review. Those attorneys can attend sessions, but often do not. Financial experts and/or mental health professionals may participate in a mediation session on an as needed basis to support the couple's discussions and decision-making around complex financial and/or parenting issues. 

Litigation. Litigation has a dual focus. Litigation attorneys negotiate on behalf of their clients to settle all relevant legal, financial and parenting issues. These negotiations typically happen outside the client's presence, in writing and over the phone. Simultaneously, litigation attorneys prepare each case to win an adversarial trial concerning relevant legal, financial and parenting issues. The vast majority of litigated cases (more than 90 percent) are ultimately resolved by agreement.

If you don't want to litigate, but you don't know whether collaborative practice or mediation is the right choice for you, here are some things to consider.  

The emphasis in mediation is to help the people find a way to speak for themselves in the negotiation. It works well for people when both feel that they have a voice and the ability to understand their situation well enough to negotiate on their own with the help of the mediator when their advocate is not in the room. When this happens, the conflict dynamic is often altered and the roots of resolution are found.

Collaborative practice is more supportive for the parties in the room. The collaborative professionals, working together, create a safe space to talk about the situation in a different way than people are often able to do on their own. Collaborative lawyers are present in the room throughout the discussions and work to support one person with the help of other professionals in finding a solution that works for all parties. When collaborative works well, it allows parties to feel safe and supported enough to communicate more effectively and ultimately reach a resolution.

Answered 12/16/2013

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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