When spouses decide they want to separate they have an option other than the courts to resolve their many issues. Mediation allows the parties to work with a neutral third party to work out mutually acceptable arrangements about their property, children, and support.  In contrast to using separate adversarial attorneys, where one goes for all s/he can get and the other goes for the least s/he can give, the mediator guides the parties through a PROBLEM SOLVING PROCESS to meet the different needs of both parties.  Negotiating, the back and forth verbal arguing to convince the other side of the superiority of a point of view, is not a major component of mediation.  Instead, mediators work to help clients solve practical problems in a mutually satisfying manner by looking at what is important to each of them.            
      For most couples the problem is clear:  There is not enough money to support two households at the customary standard of living.  The parent who has been the primary childcare provider must now go to work or work more; and the person who has already been working must work more still AND pick up on childcare.  How these over-taxed parents pragmatically rearrange their lives is the central focus in mediation.  For those who do not have children in the home, the process is the same, but perhaps the issues center more on sharing income, dividing property or perhaps planning for retirement.            
     Each participant in mediation is encouraged to cooperate to get what he/she most wants.  When couples first come into mediation they are acutely aware of the differences that divide them.  It FEELS like they have irreconcilable differences about everything.  Actually, they disagree on only a few very significant issues.  These differences occupy their hearts and fear limits their ability "to see the forest for the trees." The mediator helps the parties see they already agree upon a great deal and gives recognition to their legitimate concerns.  S/he supports both parties as they begin to express what they each need to meet their different short and long-term goals.  Most participants soon rediscover they each want very different things (after all, this is usually why they have decided to divorce).  The mediators helps each party see they can usually offer something they perceived to be of less value in exchange for something else that is of more interest.  This process moves both parties through half of the conflicting issues, leaving only a small percentage unresolved.  The mediator reminds the spouses they already have been reasonably successful in getting most of what each wants and there still has been no negotiating, just problem solving respecting the legitimate needs of both parties.            
     The mediator requires that full disclosure be made on work sheets which become, in essence, a statement of net worth.  Both parties create this with full knowledge of all assets.  They also show their respective levels of income and, in most cases, prepare a monthly budget reflecting their present needs as well as their anticipated needs once their physical separation takes place.  Usually there is a substantial short fall.  How to make up this deficit is educational as well as a problem solving process.  It is NOT "hard ball" negotiating.            
     Next, the parents turn their attention to how they will continue to parent their children, if they have children living in the home.  In mediation, we talk about a "parenting plan" or an "access plan."  Custody, as it is commonly understood, is a vestige of the adversarial court system in which one wins and the other loses the right to make important decisions about the children.  Custody describes a LEGAL relationship to children but says little about a familial relationship.  Mediators focus on the actual parenting of children, not custody.  They assist parents to be realistic about how they are going to parent while they both work, shop, cook, entertain, care for aging parents, date, and pursue leisure activities.  Most parents discover they are better able to do all these things if they cooperate around child care rather than fight over their children as if they were possessions.  The parenting plan lays out in detail how this will occur.  After formulating the parenting plan the parties often then consider which form of legal custody makes the most sense: sole or joint.  In most mediated cases the parties elect a joint custody arrangement simply because it most nearly reflects what they intend to do.  In some certain situations the parties voluntarily select a custodial parent who has sole responsibility for the children.             
     The division of marital property and plans for financially supporting the family usually flows from the parenting plan.  Property and income must be divided to support the proposed plan.  Marital property is generally divided equally and income is distributed so that both parents and children will enjoy a similar, although reduced, standard of living.  New York State prescribes the obligations of support from both parents that they may follow or mutually agree to waive, if they feel their plan is better.
     At times, the parties discover their preconceived plans will not work, because there is not enough income, property or time.  They must now propose a new plan that might work better and they begin the cycle again, this time with more refinements and more success.  Sometimes a third trip through the cycle is necessary before a workable plan is established. Still, there has been no negotiating, just problem solving.
     Loose ends are now tied up such as tax issues, medical care, court processing costs, and any other unique concerns of the parties.  If there is any negotiating at all it is around the last minor details to conclude the agreement.  By the time the parties reach this point in mediation, a basis of cooperation has been laid so that the negotiating is not so hostile or as formidable.  Usually, some mid point is easily struck with the hopes that, as time changes the circumstances, these last remaining differences will be of little consequence.  Often these differences can be further refined informally between the parties to make it even more acceptable.  
     The legal separation agreement made in mediation is like the foundation of a building, upon which the parents build a superstructure over time.  Naturally, the foundation establishes the general shape of the building but many nuances can be built upon it.  Modifications can also be made.  If for any reason the parties get themselves into trouble and the house collapses, a new one can be built on the existing foundation. 
     Divorce Mediation emphasizes an inductive problem- solving approach based upon educated cooperation rather than upon a position based, arm twisting, deductive game of “hard ball” negotiating that tears apart the fabric of a family far into the future.  Unlike clients who depend upon the courts for their future, our clients are generally convinced that their mediated agreement is the best possible agreement under the circumstances.  We know this is a "Better Way." Those who have been through both the court system and mediation know this as well.

Please, if you have any questions contact me.  I will be very happy to assist you.   

Revised 02-19-07

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