People who disagree have many options. Most broadly, they can ignore the problem, fight to the death to preserve their position, or mutually work towards an amicable resolution. If you are interested in the latter, mediation can help.
Private mediation is a voluntary, solution-focused, confidential, and supportive process structured to help people reach mutually acceptable decisions based on their unique circumstances.
The mediator’s role is to act as a neutral. A mediator facilitates the discussions, helps negotiate ground rules, defines the problem(s), provides legal information, clarifies relevant information, identifies the key issues that need to be resolved and helps parties come to an agreement. A mediator is not an arbitrator and so does not decide who is right or wrong or make a final decision.
Mediation can address legal and non-legal issues. A confidential process, it also avoids publicity that often results from litigation.
In mediation, each participant has an opportunity to share his/her own concerns and better understand those of the other. All relevant information is disclosed voluntarily rather than through expensive and burdensome litigation. Depending on the circumstances, other professionals may participate, such as an accountant, appraiser, or financial advisor.
At a pace and order that works best for the parties, the mediator helps them create a resolution that they each consider to be right, proper, and fair. Parties can create a solution tailored to their specific needs and circumstances. When conducted professionally, meditation can reduce or eliminate the hostility of an adversarial engagement. Parties are more likely to own the terms and follow through on agreed obligations.
Mediation in Separation and Divorce
For a couple that would like to separate or divorce, mediation allows people to remain in control of the process and protect against uncertain outcome, escalating conflict, litigation costs and delays. The determination of issues that arise in matrimonial and family law are based on a number of separate factors, some of which are subjectively interpreted according the judge’s discretion. There is no crystal ball that assures a specific litigated outcome.
The specific terms of a divorce or separation mediated agreement, including asset division, support, or the creation of a parenting (custody) plan can be tailored to the needs of all family members. If children are involved, mediation permits parents to focus on their children’s best interests and preserve the ability to support each other as co-parents.
Mediation for Prenuptial and Postnuptial Agreements
Mediation is also an effective process for couples who, in anticipation of marriage, would like to address the handling of financial matters upon the occurrence of certain events like death or divorce (prenuptial agreement) or address those issues during marriage (postnuptial agreement). Sometimes these discussions can be uncomfortable. A mediator can structure the conversation in a manner that can enhance the relationship. Often, by discussing and establishing clear expectations, misunderstandings can be avoided.
Mediated agreements are contracts and require certain conditions to guarantee there is a full understanding of the terms and that the terms are not the result of fraud, duress, overreaching or coercion. Thus, participants are strongly encouraged to retain counsel for consultation. In the case of divorce, after all issues are resolved, the agreed upon terms are commemorated in a “Separation Agreement” which is filed with the Court to form the basis of a “no fault” divorce judgment. No personal appearance before a judge is necessary.
Why I Believe in Mediation
I was once asked why I use my training and experience in law and mental health to work as a mediator. While we each have a personal identity, the essence of who we are is appreciated through our instinct for interpersonal connection – relationships. Since supportive relationships are integral to our well-being, resolving problems in a manner that strives to support connection, even through disagreement, and encourages the preservation of relationships after a dispute is resolved, gives me hope.
My colleagues and I at Berkman Bottger Newman & Schein LLP are skillful and experienced mediation practitioners, who have an expertise in conflict resolution and family law. Please feel free to contact us so that we can help.
Serving clients throughout the greater New York City area with offices in Manhattan, White Plains, and Bergen County, New Jersey. To schedule a consultation, call 212-867-9123 or reach out to us through our contact form today.
Abby P. Rosmarin is a partner with Berkman Bottger Newman & Schein, LLP. She concentrates her practice on alternative dispute resolution. An attorney and a NYS Licensed Mental Health Counselor, Abby draws on her training and experience in law, conflict resolution and mental health to mediate a wide range of family disputes, including divorce, separation, prenuptial agreements, postnuptial agreements, custody, parenting conflict, parent/child, trusts and estates, elder care, as well as those arising in the context of family-owned businesses. Abby serves on a variety of court-affiliated dispute resolution panels. Read more about Abby P. Rosmarin.