120 East Washington St., Suite 711, Syracuse, NY 13202
FRequently asked Questions
When is the best time to start divorce mediation?
It is never too early or too late in the separation and divorce process to use mediation services. Most of the time we work with people who have discussed the option of mediating their Separation Agreement before they contact our office. However, sometimes people inquire about mediation before they have informed their spouse or partner that they wish to separate. Other times we work with couples who have already appeared before a judge. It is also not uncommon for our clients to have entered into the adversarial process and then decided it is not for them.
What does it mean for a mediator to be impartial?
The role of the mediator is to be an impartial third party under all circumstances with the exception of safety of the clients and/or their children. The mediator has no vested interest in taking sides in favor of one person and against the other. There is no benefit to the mediator to make an alliance with one over the other; in fact, there is an advantage to avoiding taking sides.
Can the mediator let my spouse know I want a divorce?
The mediators at CNY Mediation Services, Inc. will not let your spouse know that you want to separate and/or divorce. After you and your spouse or partner have discussed separation and divorce, and we have spoken with each of you on the phone, we will send you our information packet. When both individuals are ready to meet, the first mediation session can be scheduled.
What are the benefits of mediation as opposed to hiring attorneys to negotiate for us?
To read about the financial benefits please click here. Beyond the financial benefits, there are a great deal of other benefits to using mediation for your divorce. A divorce does not have to be an adversarial process.
With the mediation process you do not have attorneys interpreting what you want and speaking for you; in mediation you have your own voice. In this way, there is less room for miscommunication and a greater chance for you and your spouse or partner to separate amicably because you worked together. Parties are able to talk face to face in a relaxed environment and not treat one another as opponents.
If the case goes to court, you will have a judge make all the decisions that you could have made yourselves in mediation including how to divide your assets and debts, and parent your children. Decisions made by a judge could be to your benefit, or they could result in outcomes that you and your attorney never predicted.
What potential risks are taken when using mediation?
Participants in mediation are asked to bring in documentation regarding income, expenses, assets and debts. There are no formal discovery procedures such as depositions and subpoenas used in mediation. If your spouse fails to disclose an asset, debt or income and you are not aware that they exist, the mediation could proceed without the benefit of that information. This could indeed adversely impact your mediation regarding equitable distribution of assets and debts and determination of support.
Upon review of your documentation, your mediator may find financial discrepancies and will bring that information to your attention. However, it is not the role of the mediator to review the documentation for accuracy or completeness. The information provided by the mediation clients is taken on face value as being accurate.
Both parties are asked to enter into mediation in good faith which includes their willingness to participate in full financial disclosure.
If the mediator does not give advice, how can we move forward and make decisions?
The primary role of a divorce mediator is to guide you through the issues that need to be included in your Separation Agreement. The manner in which the mediator guides you are governed by the principles and practices of mediation: encouraging your self-determination, and voluntary decision-making while taking into account your own and the other person’s needs and interests.
Your mediator will assist you in brainstorming and evaluating options for resolving all the issues. The mediator facilitates the conversation and makes sure both parties have a chance to express their thoughts and concerns. A major aspect of mediation is that the mediator does not tell you what you should do. You and your spouse or partner decide what you want because you know what is best for your situation.
The mediator can give suggestions and share knowledge and experience without giving you legal advice about what is best for your circumstances. If you wish to receive legal advice, it is best to consult with an attorney prior to, during or after the mediation process. Obtaining legal advice is encouraged by the mediators at CNY Mediation Services, Inc. Anything that you can do to enhance your ability to make informed, well-reasoned and voluntary decisions, including obtaining legal advice, is in your best interests.
My spouse has a great deal of power over me and I am afraid I may give too much, how will the mediat
It is part of a mediator’s job to access whether or not potential mediation participants have the capacity to mediate. However this is an extremely difficult task. The mediator’s assessment is based on the information shared by you and the mediator’s experience of each person during the mediation sessions.
One of the roles of a mediator is to be sure that each person has an opportunity to say whatever they choose to say. This means that the mediator will frequently check with each person to ask if they would like to say anything or respond to something that was said. The mediator relies upon the participants to speak up.
There are times when the emotions of a mediation participant are so overwhelming that they are not able to fully participate or effectively participate in the mediation. A mediator may suggest that the mediation session be delayed or rescheduled to allow time for participants to gain support and strength before returning to mediation.
Patterns of communication styles that existed prior to the mediation often continue during and after the mediation. If your pattern of communication with one another has not been productive, it is best to inform your mediator. Your mediator may suggest that you could enhance your chances of success in mediation if the mediator intervenes during the mediation session if old, unproductive patterns of communication arise. The mediator can structure the conversation so that each person has an opportunity to speak, and be heard. Each mediation participant may, on occasion, be asked to repeat what the other person said. This is done to be sure that their message has been received. You will not be expected to agree with everything the other person says, but you will be expected to try to understand what they are saying.
If there has been a history of verbal, emotional, physical, or financial abuse in the relationship, special care must be taken by the mediator and the mediation participants to protect against further abuse. Not all couples with a history of abuse can mediate. It requires a high degree of cooperation and sensitivity to the needs of both parties and the process. Although hiring an attorney to review your Agreement is strongly encouraged in all divorce mediations, it is especially true in this situation.
Will the agreements we reach with the mediator be legally enforceable?
If your mediator is an attorney, the mediator can draft the legal Separation Agreement as long as you have agreed to the terms of the Retainer Agreement to Draft the Separation Agreement following mediation. A copy of that Agreement will be provided to you by the mediator. If your mediator is not an attorney, the mediator will draft a Memorandum of Understanding (MOU) which is simply a list of your decisions that is later converted into a legal Separation Agreement by one of your attorneys or an attorney working as a scribe.
Since the mediator is an attorney, do we need to hire an attorney?
An attorney who is working as your mediator does not represent you as your attorney. A mediator can give you legal information, knowledge and experience but does not give legal advice in favor of one party and against the other. Independent legal counsel for each of you is important to be sure you fully understand all your rights and obligations. Your attorney who studies the agreement from your individual point of view, while keeping in mind your objectives for being in mediation, is best suited to advise you. For that reason, the parties are each encouraged to consult with independent legal counsel before and during the mediation process. In particular, the parties are strongly urged to consult independent counsel prior to signing any Agreement drafted by the mediator.
What are the financial benefits of using mediation?
Please click here to see financial benefits of the divorce mediation process.
What is the purpose of an attorney if we are using a mediator?
Lawyers participate in the mediation process by providing you with legal advice and by reviewing the proposed Agreement along with other documents that are written in accordance with the decisions you reach in mediation. Seeing an attorney before attending mediation is perfectly appropriate. In fact many attorneys like to see their client before the mediation begins so that the client is aware of their rights and obligations during the negotiations in mediation. Consulting with your attorney during the mediation is also appropriate. Using your attorney, accountant, financial advisor, therapist or other helping people before, during and after the mediation, as you see fit, is your right and can be extremely useful in helping you reach a resolution.
A mediator can give you legal information and ideas about what has worked for others but do not give legal advice in favor of one party and against the other. Independent legal counsel for each of you is important to be sure you fully understand all your rights and obligations. Your attorney who studies the agreement from your individual point of view, while keeping in mind your objectives for being in mediation, is best suited to advise you.
Can I mediate with my spouse even though he/she is in another state or county?
Thanks to modern technology, clients can mediate with CNYMSI while in a different state or country as long as the jurisdictional requirements are met for obtaining a divorce in New York State.