Divorce Mediation Over Litigation
Why It’s Better to Mediate Than to Litigate
Experienced Saratoga divorce lawyer Jean Mahserjian explains the benefits of divorce mediation over litigation in New York
No divorce is a simple, straightforward process. Many fear that their divorce will reach litigation. Divorces involve the division of two lives, and the process can be arduous and even messy. Decisions about where the children will live and which spouse is entitled to which asset rarely have single correct answers, and even though our divorce lawyers in New York can provide an abundance of guidance, the majority of issues in a divorce must be settled by no one other than the spouses themselves.
A common consequence of more bitter divorces is litigation, in which the spouses rely on the court system to resolve their marital battle. Litigation is often the last resort in a divorce case, when all other more amicable options seem to have been exhausted. At our practice, though, we encourage that our clients utilize an alternative: Divorce mediation.
The Divorce Mediation Alternative
You might think of divorce mediation as forward-looking and solution-setting, and litigation as backwards-looking and blame-laying. Mediation is often a cost-effective and time-saving alternative to litigation. It provides a way to bypass the formality, the expense, and the uncertain outcome of a trial, forgoing having to leave your fate in the hands of a judge who knows little about you and your marriage. Divorce mediation can encourage amicability and cooperation; the parties have more control over the aftermath of their divorce, including such critical elements as the division of assets, child custody, child support, and alimony.
After the mediation, your mediator will prepare a document called a memorandum of understanding, or MOU. This is not a legally binding document; rather, it is only a summary of the issues that you, your spouse, and your mediator discussed and the agreements that the three of you reached. Each party will bring this memorandum to their divorce lawyers in New York, who will then draw up a legally binding document based on those terms, assuming there are no major objections.
It is important to note, before you enter the divorce mediation process, that a mediator cannot offer any legal advice to either party and cannot even suggest an outcome. Such a responsibility is beyond every mediator’s purview. Even if mediators could offer legal advice, no one person could give two spouses all the counsel that each needs in order to advocate for him- or herself throughout the divorce process. Because of this, as an unfortunate consequence, the dominant party in the marriage is generally the dominant party in divorce mediation.
You cannot afford to enter mediation without an advocate and advisor. You do not need to spend great sums on legal assistance during divorce mediation; again, a mediator is not permitted to provide legal counsel, and you should strive to save as much money as you can by avoiding a trial. Nevertheless, you do need some guidance during the whole of the divorce process. Be sure to choose one of our divorce lawyers in New York who will coach you for your mediation sessions, assist you in drawing up an outline of the ideal outcomes that you desire, look for solutions to major issues, and avoid getting mired in minutiae.