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Common Myths About Mediation
Only people who agree can mediate. If that were true, there would be no need to mediate. Of course people who disagree can mediate, just like people who are angry can mediate and people who don't really like each other can mediate. All they have to do is agree to mediate, not agree upon every issue between them. Mediators do not expect their clients to talk quietly and never raise their voices, and a mediator truly has to feel comfortable being in the middle of people expressing anger and frustration, often times loudly. The mediator's job, through restating and reframing what a party says and asking questions, is to get them to really hear what the other is saying and feeling and then see where they have shared interests to brainstorm resolutions where those interests can be met for both of them.
A couple can only mediate if they have equal power. There are not many marriages where both spouses have equal advocacy skills. Ideally, both parties have equal bargaining power, but if they don't which is more often the case, the mediator's job is to empower the party who may not feel as comfortable in the process. She can see if the couple will agree to bring someone into the process who can help, such as a financial person or the party's lawyer. However, there is a difference between unequal bargaining power and a situation where someone does not have the capacity to mediate. If someone cannot or will not advocate for himself or herself, whether it be because of personality, substance abuse or domestic violence, then only mediators with special training should undertake those matters, if at all.
People who mediate don't use lawyers so they make unfair agreements. In addition to using a review attorney at the end, parties in mediation may see an attorney both before and during mediation, and in some cases it is beneficial for a party to come to mediation with an attorney. As a mediator, I always tell people from the beginning that they can consult with a lawyer and have suggested it during the process if I thought it would benefit the party.
Mediation ignores the law so agreements will not be upheld. It is part of a mediator's job to give the couple legal information, but she is not permitted to provide legal advice. More to the point, all couples want to know what would happen if they went to court. In a workshop entitled "What Would a Judge Do" presented by a Nassau County matrimonial judge to the New York State Council on Divorce Mediation, Judge Zimmerman reminded us that judges who conduct trials in matrimonial matters are seeing the worst of the worst cases since those are the cases that have taken years of litigation to get to her without settling. Those are hardly the standards that most people would want to use as a measure of what to do with their children or their money. She also spoke about how judges are human and that there are so many factors that come into their making decisions that she wishes more people would take control themselves and make the decisions. That said, when people learn what the law provides, most mediated agreements will substantially follow the law, and any deviations from well established principles of law should only be made knowingly by the parties.
Only people with few assets and low income can mediate. This is simply not true, and many high income, high profile cases mediate for the very reasons that anyone wants to mediate-it is a non-adversarial process to resolve their divorce in a way that is least harmful to the family, it is private and is not going to cost a fortune. In any event, complexity is not governed by the amount of money involved. It's as difficult to budget with a family that is overextended no matter if the combined income is $80,000 or $500,000. Most mediators use software programs that can help with addressing some of the financial issues, and would not hesitate to call in help where necessary.
As of October 2010, New York became the final state to enact no-fault divorce. Prior to October 2010, one (1) spouse would have to invoke grounds against the other, such as accusing the other of abandonment or cruel and inhuman treatment; or they could live separate and apart for one (1) year or more based on a written separation agreement filed with the court. There are several different New York Grounds for Divorce.
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