Divorce Mediation Style
By Ira Mandel
CRPC®, CDFA™, MEDIATOR, MBA, MS
Ira Mandel, CDFA, CRPC, Mediator, MBA, MS, an expert financial and mediation advisor, talked with us recently about not going straight to an attorney or trial but considering mediation. Mandel provides divorce advice through Divorce Financial Advisors & Mediators, and investment management advice through Wealth Management Advisers LLC, from Harrison, N.Y., a suburb of New York City. Here are his edited comments.
Question: Why is mediation a good route for someone getting divorced?
Answer: Couples see mediation as an effective means to reach a divorce separation or divorce agreement, which meets the needs of both sides of the couple, their children, and families. Mediation provides a number of benefits for couples pursuing a divorce agreement:
First, the parties make all the decisions themselves about their divorce settlement, and do not risk the uncertain outcome of a court.
Second, mediation can save a couple tens of thousands of dollars, months (or years) of time and potentially limit the stress of the divorce process versus a litigated divorce.
Third, mediation is much less stressful on each spouse, their children and their family since the couple is working together to find joint solutions in reaching a divorce settlement.
Fourth, mediation provides a means to have a cooperative relationship with their spouse going forward, which is important when children are involved, or where their ex-spouse’s input will be needed on future issues.
Fifth, a couple’s personal information remains private.
And sixth and lastly, the intense emotional stress and acrimony from litigation is avoided. A neutral attorney prepares the papers needed to be filed for a divorce separation, or divorce agreement at the conclusion of mediation.
How are mediation and arbitration different or are they the same?
An arbitrator's decision is final. The parties in a mediation can agree to follow the results of the mediation, or they can change their mind and not agree to what was 'resolved' in mediation.
Q: How do you find a divorce mediator? And what is their background?
A: Mediators can be found at the Family and Divorce Mediation Council of Greater New York (fdmcgny.org) and at The Family and Divorce Mediation Council of Greater New York (Nysmediate.org). And for those not living in New York State, they can find mediators by googling "divorce mediation," “divorce mediators” and related terms.
Divorce mediators can be attorneys, psychologists, therapists, financial professionals, etc. A judge can be a good mediator, but many other professionals trained in mediation and experienced in the facets of divorce, understanding people and understanding the finances of divorce can also be good divorce mediators. A mediator needs to understand how to move a couple or spouse from position A to position B, or identify a new way to go from A to B to resolve disagreements.
A couple in divorce mediation makes their own agreements, which may not be consistent with what the law says child support, or spousal support should be (e.g., can be higher).
Q: Does each party need their own mediator or do you have just one per couple?
A: There is one mediator for a couple. The mediator is a trained, impartial, neutral third party whose role is to guide the couple through the issues required for a divorce or separation agreement. The mediator assists the couple by improving communication, clarifying positions, identifying each spouse’s core concerns, and helping brainstorm options that lead to a consensus. The couple makes their own decisions, however.
Q: How do you prepare for mediation?
A: Depending on the couple’s (or spouse’s) level of knowledge and comfort, they might prepare for mediation by: each consulting individually with an attorney to understand their legal rights; or consulting with a divorce financial analyst to help the couple or individual spouse understand the couple’s finances; or thinking through what their individual positions are on the issues that will need to be resolved (e.g., joint or sole child custody, child support, spousal support, division of assets and liabilities, etc.).
They should also come to mediation with a mindset that they are willing to compromise with their spouse in order to achieve their top mediation goals--many but perhaps not all. Couples are encouraged to consult with their attorney before and during the mediation process as needed.
Q: How long is the process usually and how much does it cost?
A: Most mediations require five to 10 hours. However, this time can be more or less depending on the number of issues to be mediated, the complexity of the issues, whether there are children involved, the couple’s financial situation, and each spouse’s willingness to compromise to reach a consensus. Mediators typically bill on an hourly basis, which ranges in general from $275/hr. to $500+/hr. in New York, and can vary elsewhere depending on where they live. Legal fees for consultation, as well as to prepare the divorce documents needed to be filed with the court are additional.
Q: How often are the issues resolved this way? And if not do you then hire a matrimonial lawyer?
A: Couples who participate in mediation do so realizing that compromise will be necessary to reach an agreement. Spouses who cannot reach agreement on the terms of their divorce can retain attorneys to try to work out the couple’s differences, or turn to divorce litigation.
Q: What's the difference with the newly popular collaborative divorce?
A: Collaborative divorce is for couples or spouses who need more assistance throughout the divorce process and have the resources to pay for this additional support. Collaborative divorce involves hiring more professionals to assist with the divorce process from start to finish. Each spouse retains his or her own attorney, who is involved throughout the entire process. Additionally, the couple hires a neutral financial professional and a divorce coach (e.g., a psychologist or therapist, for example). All professionals are trained in the collaborative divorce process.
The financial professional prepares analyses to show the financial effect of different divorce financial proposals and helps the couple come to a financial settlement. The divorce coach assists each spouse with the psychological aspects and stresses of the proceedings and tries to improve communication between the spouses.
The collaborative divorce process is a voluntary process. However, each spouse signs a contract in which they agree that their attorney and other professionals will not represent them should they need to turn to divorce litigation to complete their divorce.
Q: So is this process more expensive with the additional professionals involved? Is it still less than going to a trial?
A: Collaborative divorce expenses vary depending on the factors and complexity of a particular case. General estimates of collaborative divorce expenses in New York range from $40,000 to $60,000 per case. However, each case has its own set of needs and requirements, which will affect the final cost of the case.
Q: Are there certain divorce cases that are better for mediation, collaborative, or a traditional divorce and possibly trial?
A: Mediation works best when the couple has a civil relationship with one another, is willing to discuss and resolve the divorce issues with their spouse, and is prepared to compromise to achieve their goals. Mediation is the most cost and time efficient, and typically has a lower degree of stress. The couple makes the final decisions on the terms of their divorce agreement, no outside party.
Collaborative divorce works well in situations where the couple may have difficulty working out issues with their spouse, needs an attorney for the entire process, and has a more involved set of family financial assets. The couple has the financial resources to work through the process with several divorce professionals.
A litigated divorce is a very difficult, stressful, and expensive process, which could go on for one or more years. The final decisions in a divorce are made by a judge, who does not know you, your children, or your family.
Q: Any final advice?
A: Determine in advance what your needs and goals are in working out a divorce or separation agreement. Look at the process as a means to satisfy your needs and accomplish your goals.
Do not look at the divorce process as a means to get back at your spouse. This ‘payback’ mindset will dramatically increase the cost of the process, the time length of the process, the stress you, your children and your family bear, and will poison your relationship with your spouse going forward.
Lastly, do not become fixated on whether some potential income of your spouse was not included in the settlement. Walk away satisfied if the settlement achieves your needs and goals.