Abby Tolchinsky
Mediation Q&A
- What is mediation and how do I know if it is right for me?
Mediation is a voluntary and autonomous negotiation process. In mediation, you and your spouse negotiate directly, with the support of a mediator whose role is to facilitate and guide the negotiations. All the discussions proceed by mutual agreement only. If you are able to analyze, and understand fully, your values, concerns and needs, then you can participate in mediation. Just as important, you need to be able to have a voice in the room. That means, to disagree with your partner’s point of view and, just as importantly, to agree. Capitulating to keep the peace or rejecting an offer out of anger, without considering if it is a reasonable one, are both going to impede coming to a settlement.
A benefit of mediation is that you set the pace. You meet as often as makes sense and can “try on” decisions along the way. That means, seeing how a specific schedule actually feels or whether a shared bank account for Junior’s needs, makes sense. You may re-negotiate based on the reality of how things are going.
A key “ingredient” to working through a divorce negotiation, sitting alongside you’re soon to be ex-spouse, is motivation to stay out of court. Maybe you’ve a friend or loved one who went through a multi-year litigated divorce. If so, you’ve seen, firsthand, the emotional impact of the conflict on everyone involved, not to mention the financial costs. For parents who want to be able to get along in the future, enjoy milestones in their children’s lives and preserve hard-earned assets, mediation is often an ideal option.
- What issues get resolved in mediation?
Every aspect of a divorce settlement can be resolved through mediation: spousal support, division of marital assets and liabilities, child support, parenting time and how you raise the kids. This means, a thorough analysis of the family’s monthly budget and of your earnings. What do each of you and the children need on a monthly basis? Does one of you need to go back to school for professional training? Do you need to cut spending or increase earnings – or both? What would a court ordered result look like and does it make sense alongside your budgets? Maybe it yields a result that seems unfair or just doesn’t make sense to both of you. If so, the law becomes a frame of reference – values, actual cash flow and assets, determine the settlement.
We also discuss how mom and dad wish to spend time with the children. What are the kids’ activities and routines? Does one parent travel for work? Will everyone continue to live near each other? How does each of you hope to spend time with the kids? We explore all aspects of the annual calendar and of the parent’s schedules. Just as important, can you work together as parents and keep the kids out of the conflict? For example, do you generally agree with each other about the children’s education, spiritual life or medical needs? Mediation provides a unique opportunity to think through these critical questions together, to come to mutually workable solutions that make the best sense for your particular family.
- When not to mediate?
If you are intimidated by, or afraid of your spouse — can’t express yourself in his presence, mediation is probably not the right process for you. Similarly, if you believe there are hidden assets, hire a lawyer. Mediators expect full disclosure, but we don’t have subpoena power. If there’s substance abuse, we recommend you hire a lawyer. Remember, you need to participate fully and directly in these complex negotiations, representing yourself and understanding the choices in front of you.
- Do I still need a lawyer?
Marriage is a legal relationship. Remember that sentence, in every wedding, “by the power vested in me by the State of .…” and divorces agreements too are legal contracts. They’re the result of complex emotionally fraught negotiations. Regardless of how you move forward, consult with an attorney and learn what your rights and obligations are under the law. Armed with information, you and your spouse may choose “conscious uncoupling”.
Abby Tolchinsky is a founding partner of Family Mediation LLP, based in New York City