What Is Mediation?
Mediation is a dispute-resolution process that helps people settle their differences amicably. Mediation uses a neutral and impartial facilitator — the mediator — to guide the parties towards peaceful compromise.
Mediators are not referees, judges, or arbitrators. So they cannot issue “orders” deciding who is going to get what. Instead, an agreement reached through mediation belongs entirely to the participants themselves: it is their agreement, created on their own terms.
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Is Mediation Only for Divorce?
No, mediation can be used for almost any dispute (except criminal actions). Jacob Tuckfelt has mediated business disputes, not-for-profit organization disputes, small claims matters, and a variety of other issues. The only thing required is that the parties are willing to listen to each other and make compromises to achieve a resolution.
What is the Mediation Process?
Mediation typically takes place over the course of three to five sessions. Issues that must be resolved include sharing parental time with the children, dividing marital assets, and setting appropriate amounts of child support and spousal maintenance (if applicable). A wide range of other issues can also be addressed during this collaborative process.
It is also important to note that all the marital issues do not have to be resolved immediately. Some issues may be mediated, with the remaining issues left for the courts. Or some issues may be put on hold and revisited later, when circumstances require. Mediation is a flexible approach based on the specific needs of the participants.
Like many activities since the Covid emergency, mediation has embraced remote meetings. Typically, mediation is now done via Google Meets, Zoom, or similar applications. Most people prefer this approach because it allows for greater flexibility in scheduling. However, arrangements can be made for in-person meetings if needed.
How Do I Get Started?
Email the mediator to schedule a brief telephone call to discuss whether mediation is right for you. Then talk with your spouse to make sure you are both willing to try mediation. Then set up an initiation appointment. If it goes well, you will continue with mediation sessions until you have reached an agreement. If it doesn’t go well, you can terminate the process anytime and only pay for the services you have used.
Is Mediation Appropriate for Complex Cases?
Unquestionably – Yes. In fact, the benefits of mediation are even greater in complex cases. This is because mediation allows the parties to develop customized solutions that meet their specific needs. For example, divorces involving family-run businesses can be extraordinarily complex. Courts often impose harsh and simplistic resolutions in such cases: the business might have to be quickly sold and the proceeds split between the parties, or one party might have to immediately raise funds to buy out the other party from the business.
A mediated resolution can be much more customized. The parties might wish to create an extended timeline, during which one party’s involvement in the business will be slowly “unwound,” enabling the other party to assume the responsibilities in an organized way, without dropping any pieces. Or sometimes the parties wish to divorce but continue operating their business together. This can be done by separating the personal finances from the business finances. The parties end up divorced but with a separate company that they cooperate to run as if they were arms-length business partners. As an experienced business law and corporate attorney, as well as an experienced mediator and matrimonial attorney, Jacob Tuckfelt is particularly capable of assisting divorcing parties with complex business issues. Stock options, RSUs, shared membership interests, voting rights, profits interests, trusts, and almost any other assets can be efficiently addressed in this manner.
What is an Uncontested Divorce?
An uncontested divorce is a divorce granted by a court without any argument by the parties. Mediation can be used to obtain an uncontested divorce. To do so, the parties use mediation to reach an agreement covering all the necessary topics. The parties then submit their agreement to the court to obtain an uncontested divorce. They can do this immediately after signing their agreement, a few years later, decades later, or even never. It is entirely up to the parties to decide when they wish to move from separated to divorced.
Once the parties decide that they want to obtain an uncontested divorce, all they have to do is contact the mediator.* The mediator can then prepare all the uncontested divorce documents. These documents are then submitted to the court. A judge reviews the documents and then signs a Judgement of Divorce. No court appearances are necessary.
The Judgement of Divorce officially divorces the parties. But it divorces them on their own terms. That is because the Judgement of Divorce “incorporates” the parties’ agreement. Basically, the parties tell the judge how they want their divorce to be, and the judge makes that into an official, enforceable court order.
* Note: Not all mediators can prepare uncontested divorces. Only mediators who are licensed attorneys can do so. Jacob Tuckfelt is a licensed attorney in NY and NJ and often obtains uncontested divorces for his mediation clients.
Why Mediate Instead of Litigate?
Mediation is confidential: the participants agree that the mediator will not be called as witnesses in any future litigation. This means that that the things you say in mediation while attempting to work out a compromise cannot be used against you later in a court proceeding. Additionally, mediation sessions are private. Unless the participants agree otherwise, the only attendees are the participants and the mediator. In contrast, divorce proceedings often take place in open court, with other litigants, attorneys, and even members of the public present in the courtroom.
Mediation sessions are informal, sometimes even friendly. The mediator guides the conversation through a problem-solving process that encourages the participants to focus on resolving issues, NOT on attacking each other.
In contrast to mediation, litigation is BY DESIGN formal and adversarial. In litigation, there are strict rules regarding both the procedure and substance of what can be addressed. Typically, the parties cannot depart from these formal rules even if they agree that they wish to do so.
Unlike litigation, mediation is strictly voluntary. Thus it goes at the pace the participants wish, and continues only as long as they want it to. Mediation sessions can be conducted weekly, every two weeks, once a month, or however often the participants wish. In litigation, there are strict timelines (that are sometimes followed, and sometimes not). Sometimes these timelines require the parties to proceed much faster than they wish. Other times, the legal system can be cruelly slow, letting a dispute remain unresolved for years and years.
Lack of Adversariness
Attorneys are advocates for their clients alone. It is an attorney’s job to strongly push for his or her client’s advantage, and to attack the weaknesses of the opposing party. Attorneys often erect walls between the parties, cutting off useful communication that could otherwise lead to resolution. Often, the adversariness of litigation creates even more disagreement and anger between the parties than existed before the legal process began. This is a terrible result.
Mediators, in contrast, are neutral facilitators. The role of the mediator is almost the opposite of the role of the attorney: the mediator works to remove barriers so that the participants can work together cooperatively.
In mediation, the participants reach an agreement based on a meeting of minds. By working together to resolve their issues, the participants decide how to structure their lives going forward, instead of leaving these decisions to the courts. Participants can craft their own parenting and financial plans to meet their individual needs. They can go into much greater detail, and develop more creative solutions, than would be ordered by a court after trial.
NOTE: most people realize that the greater flexibility and creativity of a mediated agreement is useful for issues such as shared parenting arrangements. However, this greater flexibility and creativity is also very useful when there are complex financial issues, for example:
Complex compensation arrangements (stock options, RSUs, etc.).
Closely held businesses (in which there might be a buy-out, or both participants might continue to be involved post-divorce).
Tax issues (where credits or other tax benefits must be allocated between the participants).
Estate planning issues (Trusts or other complex arrangements that might need to be modified).
In a litigated divorce, each party must retain an attorney. And the initial retainer deposit (the advance payment to the attorney made when the litigation begins) that each party must pay is quite high, usually $7,500 or more. This is to ensure that the attorneys have sufficient funds on account to cover the extensive legal work that will be required.
Whereas litigation requires two attorneys (or three or more if court orders that the children must be represented), mediation requires just a single mediator. This alone can halve the cost. Also, the retainer deposit for mediation can be much lower because the mediator does not have to anticipate extended and contentious proceedings.
Avoid the Court System
Litigated divorce takes place within the court system. There may be one or two court appearances, or dozens of court appearances. There could even be a trial, which can extend over six months or longer. If the parties don’t eventually reach a settlement, a judge will make all the important decisions instead. The judge’s decisions will then be issued as an “order” or a “judgement” which can be imposed upon the parties by force of law.
Mediation does not require the court system. When parties reach a mediated agreement, they make a contract between themselves. This contract can be enforced using the court system if necessary, but most parties who use mediation do not require enforcement actions. Instead, they compromise with each other and abide by the spirit of their agreement. They can modify their agreement anytime they wish, so long as they both agree. And the parties can always return to the mediator for assistance with making these modifications.