Litigation vs. Negotiation - Breiter and Gura, Attorneys at Law

Mediation: The Good, the Bad, and the Really Ugly

What is mediation?

Mediation is a process by which two divorcing parties meet with a neutral mediator in order to work out the details of a Stipulation of Settlement which can then be used as the basis for an uncontested divorce. With legal costs rising along with the cost of everything else, the idea of only having to pay one mediator rather than two attorneys is certainly appealing. Also appealing is the idea that two people can work out the details of a divorce settlement without resorting to litigation. And mediation has gotten a lot of publicity lately for supposedly being a useful and monetarily prudent way to get a divorce.

So What’s Good About It?

Well, It sounds good. It seems to make sense. There doesn’t appear to be any reason not to do it if the parties can still communicate. But honestly, for many people, that’s about all that’s good about it.

What Could Possibly Go Wrong?

To start with, you probably don’t know the first thing about New York’s divorce laws, do you? And you have little or no idea of what New York State has already determined is fair and equitable in a divorce action, and no idea of what monetary considerations you may be entitled to under the law. And you certainly are not aware of the subtle changes that can be made to the language in an agreement which can result in your having more legal protection after you actually get a divorce. You don’t know these things, and a mediator is not allowed to counsel you about them.

The Bad

One problem is that the person mediating your agreement may not know much about New York divorce either. Some mediators are not even attorneys, and some attorneys who handle mediations are often not that well versed in current law either. But the real problem is that even if you have the most knowledgeable mediator on the planet, they can not offer advise to either party which pertains to their actual legal entitlements under the law. An attorney, or mediator, cannot represent two clients in the same case, which means that not only are the mediators prevented from informing you of entitlements under the law (including those monetary rewards to which you have a right), but they can’t offer either party the subtleties of contract language which can help protect your rights now and in the future. And this inability to completely inform their clients results in. . . .

The Really, Really Ugly

Our firm gets a constant stream of people coming in with mediated agreements, asking us to either look them over before they sign (a situation where we can often help), or to get them out of legal difficulties which have resulted from poorly or improperly prepared agreements which have already been signed (a situation where we often can not help). Here are just three examples of the many types of problems we regularly see with mediated settlement agreements (and read on — we’ve saved the worst for last):

What happened to my spouse’s pension?

Problem — Husband and wife sign an agreement which does not in any way address the issue of pension distributions. The law entitles married partners to a one-half share of the eventual value of pension funds deposited during the marriage, but if the parties don’t bring up this issue, the mediator cannot ethically bring it up himself. The result is that the non-monied spouse ends up with nothing from the monied spouse’s pension contributions — contributions which were made with what is considered to be marital funds, and are, therefore, their entitlement.
Solution — There is none. Your spouse will get their entire pension and you will get nothing.

Why do I have to pay full child support when I’m contributing for my child’s room and board at college?

Problem — Husband and wife sign an agreement which does not contain specific language allowing the non-custodial parent to take a dollar-for-dollar reduction in child support payments for whatever they contribute for the child’s college room and board expenses. The law says that you are entitled to this deduction, but only if the proper language appears in the agreement. A mediator cannot ethically inform you of this fact, and when the child goes to college, the non-custodial parent is going to discover that they are, in effect, paying twice for the child’s room and board during his or her residential time at college.
Solution — There is none. You’re “entitled” by law to the deduction, but not without the correct language being included in the agreement.

And our personal favorite. . . .

WHY CAN’T I GET A DIVORCE?

Problem — You and your spouse have signed a mediated settlement agreement which includes provisions for the submission of an uncontested divorce. But when it comes time for a judge to sign the actual Judgment of Divorce, he refuses, and you learn that your mediated agreement does not contain required statutory language and/or provisions. So the judge says, “Re-do the agreement and I’ll sign the divorce,” but your spouse says, “Well, if we’re going to revise the agreement, I have a few other issues I’d like changed.” If you refuse to re-open negotiations and your spouse refuses to sign a new agreement with the language and/or provisions the judge has requested, what you end up with is a valid contract (which can be enforced through a contract action in a different court), but no divorce.
Solution — If your spouse will not co-operate, you’re going to need to hire an attorney (someone other than your mediator) to request a hearing on those sections of your agreement which do not meet the statutory requirements. You’ll have to pay a retainer fee, and all the attorney’s fees associated with preparing and filing the motion and appearing in court to argue your case. So you’ll end up litigating the matter in court anyway, and you may end up with a judge making a decision that is not as favorable to you as the one you thought you’d agreed on in mediation!

The Bottom Line

Mediation has turned out to be a wonderful-sounding idea that just doesn’t fulfill the real needs of couples who are dissolving their partnership — which is basically how NY State views your marriage “contract.” Would you even think of attempting to dissolve a complex economic partnership without the advice of an attorney?

At Breiter and Gura, when both parties desire a negotiated settlement, we make every attempt to settle your matter as peacefully and quickly as possible, while affording you the protection that only sound legal advice from skilled legal professionals can provide. In almost every case of negotiated settlements, the trade-off for your legal fees is a fully enforceable agreement which addresses all of your entitlements under the law while preserving your right to enforce the provisions of your agreement in the future should that become necessary.