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New Yorkers who are going through a divorce need to have a court declare the marriage over. This means filing papers with the court and having a judge sign and issue the final order. In general, the entire process can be long and costly, as the number of divorce court judges is small and their dockets tend to be quite crowded. However, there is a way to get your divorce without going through most of the litigation process.
Divorce mediation provides a way for you and your spouse to resolve all of the issues in a fast and informal way. Your divorce attorney can help you determine if this is the right way for you to go, or if it makes more sense to pursue formal divorce litigation.
What Is Divorce Mediation?
A mediator is an impartial third party who will listen to each side’s issues and try to craft a settlement. In this way, the mediator acts as a facilitator, helping both sides to focus on and discuss the issues. While many people confuse mediation with arbitration, these methods of dispute resolution are completely different. An arbitrator is a private adjudicator who can make rulings on evidence and the case itself, just like a judge in litigation. This is not the case with a mediator who has no power to force either party to do anything.
How Do Mediation and Litigation Work?
Divorce litigation is a very formalized process. One spouse files a complaint, serves it on the other spouse, and then the defendant spouse has to file an answer to the complaint. The case will be placed on the calendar of a judge in the Supreme Court, with both sides exchanging net worth statements and providing discovery on all relevant facts. Furthermore, the parties and their respective lawyers will have to appear in court from time to time so the judge can find out the progress of the case. In some situations, the judge will work with the attorneys and the married couple to work out the issues. In others, the parties might meet directly to craft a settlement. If they are unable to come to a settlement, then a trial will be held to resolve any outstanding issues like child custody and visitation, spousal maintenance, and equitable distribution of marital assets.
Mediation works in a different way. First, the parties have to consent to mediation, and either agree on a mediator or have the court appoint one. Next, the parties will disclose their financial information and their respective positions to the mediator, who will assist them in coming to an agreement. One or more meetings will be scheduled with the parties. Sometimes, the mediator will meet with the spouses and their lawyers together, other times with each party separately, and even with the lawyers alone. The goal is to assist the parties in reaching an agreement on all of the issues of the divorce in an amicable manner.
What Are the Pros and Cons of Each Approach?
As a formalized procedure, divorce litigation rarely yields any surprises. It is very structured, and if you are represented by an experienced divorce attorney, he or she will have appeared many times before each judge. As a result, they will know ahead of time what approaches work best with each judge. In addition, discovery is mandatory in divorce litigation, and if you think your spouse is hiding something, you can use a subpoena or court order to compel disclosure.
There are a number of downsides to going with litigation. It is costly and time-consuming. Every time you have to go to court it is going to cost you more money in legal fees. It is also adversarial in nature, which can only exacerbate tensions you may have with your spouse. This is especially problematic if you have minor children as you will both be in each other’s lives long after the divorce judgment has been granted.
In contrast, going with a mediator can be a very cooperative experience. A good mediator will take the time to get to know the parties, let each one tell their story, and try to come up with a resolution that works for everyone. This can allow the spouses to end the marriage in an amicable manner, facilitating future cooperation on issues involving minor children. You can also work through mediation quicker, saving you and your spouse in legal fees. In general, mediation will result in a divorce quicker than going through protracted litigation.
The major drawback of mediation is that it will only work with spouses whose relationship is not completely adversarial. If you and your spouse are barely talking to each other, then a mediator may be unable to bridge the gap. This could end up being a waste of time and money for both of you. Also, if the issues are complicated or there are questions about whether the parties are being open with information, then mediation may not be appropriate since the mediator cannot compel a resolution or even disclosure of information. Mediation is also not appropriate if there has been domestic violence in a relationship, or if one spouse is fearful or distrustful of the other one.
The key is determining which works best for you in your situation. This will involve being honest with yourself and your attorney. If you believe that you and your spouse can work things out through mediation, then this might be the most cost-effective way for you to get divorced.
If You Are Considering Getting Divorced, Better Call Saul!
Getting divorced in New York presents a great deal of issues that need to be resolved. One approach is by using mediation. At The Saul Law Firm, LLP, our team of experienced divorce attorneys will help you decide if mediation is right for you. Whether you go with mediation or litigation, our attorneys will work hard to get you a result that meets your needs.