In my experience, most couples that wish to work with a divorce mediator have a demeanor that’s open to arriving at a fair settlement. Sometimes, however, issues pop up that arouse great passion and the idea of what’s fair is challenged.
Lately, I’ve mediated some heated moments around the division of marital property. Understandably, in a time of instability dividing hard earned assets can allow an air of possessiveness to creep in.
Fortunately, in mediation we have the right tools to guide the discussion.
First, we collect the facts and create a list of marital and separate property*. Achieving agreement about what is on the table for division helps define the concrete task of hammering out the options. Whereas discussing the division of assets in the abstract only fans the fire of uncertainty.
Second, we keep language neutral and without accusation. In mediation, the goal is to find a fair settlement. Using loaded language about entitlement and who is more deserving is counterproductive while using measured and level terms like giving credit and finding what is balanced and equitable helps keep the dialog more business like and less emotional which aids decision-making.
Third, we build in time to think. When talking about the division of assets, consideration for the other pieces of the settlement is necessary. Under NY law, factors on how to equitably distribute marital assets consider important details about fairness, such as each person’s income, who if either, will reside in the marital residence, how health insurance will be maintained, how much, if any, support payments will be, etc. It takes time to drill down and evaluate the potential options.
Mediation is an opportunity for self-determination about important matters at a difficult time. The mediator is there to make sure the parties consider the issues from all angles and that there is full understanding of any proposed settlement. Only when both parties agree on all of the issues is an agreement signed and becomes enforceable.
With all that is at stake in divorce there needs to be appreciation for what it takes to make informed and enduring decisions that work for both people involved. Better use the right tools for the job!
If you would like to learn more about divorce mediation, please contact me to schedule a no fee consultation.
*Marital Property is any property that a couple obtained from the date of marriage to the beginning of the divorce action (or in mediation to a date the couple agrees upon) regardless of which person is named as owner; examples are a house, car, IRA, bank account(s), pension, annuity, business etc. Separate property is acquired by one party before the marriage (or after the execution of a Separation Agreement, commencement of divorce action or date agreed upon in mediation). Also, an inheritance, a gift from someone other than your spouse, compensation for personal injuries, may be considered separate property.