What is the Role of the Law in Divorce Mediation?
Every year around this time, along with many other attorneys, I attend the MatLaw Update which is an all day seminar designed to review developments in matrimonial case law in New York State. As a divorce mediator, I do not represent parties in court cases. It is my responsibility, however, to inform my clients about the law in order to help them make informed decisions.
It’s important that I attend the updates, but it’s also always enjoyable and entertaining. Tim Tippins, Esq., an experienced former matrimonial attorney, current law professor and columnist for the New York Law Journal, is an excellent presenter with fantastic comic timing. (Yes, matrimonial case law can be funny!)
Unlike cases that go before a judge, mediation is about self-determination. Couples are there to make decisions for themselves about how to divide their property, co-parent their children and begin to think about new lives. There is no judge in the room. Only me, the mediator, there to facilitate the conversation and keep couples informed. But then what is the role of the law in mediation?
If divorcing parties can decide for themselves about what to agree to then why should they care what the law says? One obvious answer is that couples cannot agree to break the law. For example, parents must provide for their children until emancipation (age 21) and divorce does not relieve them of that obligation. Also, the law can provide a starting point or simply provide additional information if there is an impasse in the discussion. And, finally, while there is wide latitude in mediation to make decisions that are creative, the results will be reviewed by a judge when filing for divorce and therefore, the agreement must be equitable.
I have seen couples who want to speed through the divorce process in order to put it all behind them as quickly as possible. It is my job, as mediator to balance that need against their future need to feel that they made the best decisions possible. Being well informed is an important ingredient for sound decision making.
In mediation there is discussion about the law and the facts, as well as consideration for what’s fair and practical in order to make decisions that form a livable agreement, with no regrets.