The Myth of Mediation

The Myth of divorce Mediation

What is divorce mediation?

Mediation is intended to be a process in which an impartial third-party seeks to facilitate communication and promote understanding between divorcing parties to enable them to reach their own matrimonial agreement. People look to divorce mediation for a number of reasons including “it costs less”, “it’s faster”, “it’s more fair” and “we do it together”. These are all reasonable goals but reality, generally, and divorce, specifically, take a heavy toll on the concept.

Our experience with divorce mediation

It may be that as you read this you laugh and think “Of course they don’t like divorce mediation, they’re lawyers, it’s bad for business”, after all, that’s part of the myth. The truth is the concept of divorce mediation was as appealing to us as it was to many. The truth is most divorce mediators today do not know the true origins of divorce mediation, who started it, how or why. We do. We not only know who started divorce mediation Ken Keith trained in divorce mediation with him, personally. We know what he had in mind, how he thought the process should work. We not only know the origins of divorce mediation, we were in the vanguard of mediation and, in concert with an MSW (team mediation), operated a divorce mediation practice separate and apart from our legal practice. It is experience both as mediator and divorce lawyer that has led us to the conclusion that except for the simplest of divorces (where a less expensive ‘uncontested’ divorce will usually be a far better choice) divorce mediation can leave at least one participant in a far worse position than had they taken a more traditional path and can result in the expenditure of far more time and money, for both sides, when an attempt is made to set aside or correct the agreement reached in the mediation.

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Why is divorce mediation a myth?

Divorce mediation is a flawed concept for a number of reasons:

The Mediator. Divorce mediators are not licensed in New York. Anyone can mediate. Literally doctors, lawyers, accountants, social workers, anyone at all, can call themselves mediators. While organizations have self-created and are self-generating standards by which they, themselves, certify others, there is no governmental oversight that determines who can claim to be a divorce mediator and who cannot. Someone with a struggling social work, accounting or law practice, or just someone bored with their present field of endeavor, can decide today to try a new business and declare themselves to be a divorce mediator tomorrow. There is no professional oversight, no mandated training, no true redress when the process goes wrong. A mediator who is not a lawyer cannot even give advice on any legal issue without violating the law.

The Negotiator. You are the architect of your own agreement- You negotiate with the individual you are divorcing. You may be the stronger spouse, in which event you may seek to tilt the process to the outcome you desire (which may lead to litigation to set aside the agreement when the inequities are realized) or you may be the weaker spouse in which event you may well see a dynamic that played itself out repeatedly during the marriage repeat itself as you put together what may be the most important legal document of your lifetime, resulting in an agreement that fails to protect you as you transition to a new phase of your life. The question must frequently be asked ‘if we could work collaboratively well enough to put together our own divorce would we actually need it?’ The answer to this rhetorical question usually underscores one of the larger flaws of divorce mediation.

The exchange of information. The process of divorce relies heavily on a documented, verified disclosure of income and assets under the umbrella of the divorce action pending in the court system. Documents are signed and sworn to, neutral appraisers are appointed to value homes, businesses, degrees and the like and oversight exists to avoid assets being hidden (or undervalued). There are no devices in mediation to compel disclosure or to assure that fair value is attributed to all assets. Additionally, if mediation fails, frequently the process has resulted in a party disclosing their ‘bottom line’ to their spouse. The result is that when that party seeks counsel and learns that they are entitled to far more it becomes much more difficult to obtain the fair result to which they were entitled in the first place.

The agenda. Probably the single largest abuse in mediation is that the parties do not always come to the process with the same goal. Frequently mediation is used by a spouse to keep their mate from getting representation, and as a result the settlement to which they are entitled, in a divorce.

Simply put, divorce mediation is a great idea that we believe translates badly into practice. It is unreasonable to believe that individuals, at one of the most difficult and stressful times of their lives, a time at which they are far more concerned with the outcome of the divorce from their own point of view than from that of their spouse, can work collaboratively to an appropriate result when they don’t even fully understand what their rights and/or obligations actually are. There is probably never a time that one is more in need of legal counsel than when they are divorcing or separating and, once a bad agreement is in place, setting it aside, if possible at all, may be far more expensive than the cost of being represented in the first place.

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