Mediation – Part One
Mediation in matrimonial matters has evolved with a stigma of producing agreements that are non-compliant with New York State Domestic Relations Law and in setting parties up for economic failure. Much like matrimonial arbitration, mediation is driven by the matrimonial knowledge and domestic relations experience of the Mediator. To the extent that your Mediator is an ongoing matrimonial trial lawyer who possesses the necessary neutral skills to facilitate dialogue towards the production of a settlement agreement in keeping with New York State Domestic Relations Law, mediation can be an invaluable tool for lawyers, the court system, and clients alike.
This article discusses mediation in two parts. The first part discusses mediation from a broad perspective, providing a general overview of the way in which the process is initiated and who is involved. The second part, which will appear in the August Newsletter, discusses mediation from a narrow perspective, providing a substantive review of the drafting process relative to mediation agreements.
Under New York law, mediation is governed by local rules, not by statute. This article draws on Rules 3, 4, 5, 7, 13, and 14 as set out in the Matrimonial Mediation Program for Westchester County via The Local Rules of Court for the Ninth Judicial District, Supreme and County Courts, Matrimonial Part. However, parties can retain the services of a private matrimonial mediator outside of the county-wide program. In either context, mediation is non-binding and confidential.
Initial Mediation Procedures: Rule 3 and Rule 13
In Westchester County, parties are referred to the Matrimonial Mediation Program through either their Matrimonial Part Justice, their assigned Court attorney-referee, or upon their own request. Under Rule 3, referral can take place at any time during the litigation process and is only inappropriate in cases involving child abuse, neglect, domestic violence, or a severe imbalance of power between the parties.
Mediation proceedings begin after the Court issues an Order of Reference specifying “the topics (e.g., child custody, visitation and/or financial issues) to be submitted to the Program for resolution . . . [and] direct[ing the] parties to attend an initial 90-minute session with a Mediator from the Program’s Roster of Neutrals.” If the parties do not wish to be appointed a Mediator from the Roster of Neutrals, they can appoint their own Mediator. Regardless, at least three days “prior to the initial session, the parties’ counsel [must] send the Mediator a copy of the pleadings, the Statements of Net Worth, and any other information necessary for the effective negotiation and resolution of the issues involved.”
Importantly, under Rule 13, the commencement of mediation proceedings does not stay court proceedings. The “‘no stay’ policy [in this respect] recognizes the special need for prompt action in matrimonial and family proceedings[, since f]ull discovery, emergency and pendente lite relief, family dynamics, and the needs of children require ongoing access to the Court.”
The Mediators: Rule 7 and Rule 14
As noted above, Mediators are appointed to the Matrimonial Mediation Program through the Roster of Neutrals. Overall, under Rule 7, the District Administrative Judge determines and oversees “whether a person qualifies for inclusion on the Roster of Neutrals and whether . . . [he/she] has the requisite temperament, character, and discretion” for a position as a Mediator.
In order to qualify for inclusion on the Roster of Neutrals, Mediators must meet the following prerequisites: “[c]ompletion of at least 60 hours of family mediation training in a program recognized by the New York State Office of Court Administration . . . [and] at least four years of family mediation experience, including 250 hours of face-to-face mediation with clients and a minimum of 25 custody and visitation cases.” In addition, “all [M]ediators must attend at least six hours of additional approved training relevant to their respective practice areas every two years.”
When it comes to assigning Mediators to cases, if a case involves financial issues, only “Mediators with knowledge of, training in and experience with financial aspects of divorce” may be assigned. Likewise, if a case involves “decision-making for a child or parenting time with a child . . . [, such cases may be] referred only [to] Mediators with knowledge of, training in and experience with such issues.”
The Role of the Mediator: Rule 4
Once a Mediator has been appointed, his/her primary task is to act—under Rule 4—as a “neutral facilitator of communication [who] helps the parties reach future-oriented solutions that meet their families’ individualized needs.” Overall, Mediators are supposed to “probe the parties’ feelings, values, and preferences underlying their stated positions [and withhold from] giv[ing] legal advice, predict[ing] likely court outcomes, or forc[ing] solutions on the parties.”
Notwithstanding Rule 4, as a general matter, mediation is very personal to the Mediator. In essence, the Mediator should facilitate the mediation in a way that he/she is comfortable. It is critical that the law be explained and, if otherwise knowingly waived, applied. Mediation is not therapy nor is it counseling. The intent of mediation is to dissolve a marriage and to resolve ancillary issues to the dissolution. The Mediator at all times must remain neutral and never engage in any unilateral correspondence and/or conversations with either of the parties. All documents forwarded by the Mediator and/or received by the Mediator from the respective parties need to be made fully available to the other.
In addition, the effective Mediator will recognize the imbalance of power in the marital relationship and attempt to neutralize it. The effective Mediator cannot be timid about confronting the more emboldened party in a cerebral and direct way. An agenda needs to be set for each mediation hearing, with homework given at the conclusion. The Mediator needs to prioritize in his/her own mind the issues with a recognition that if the respective parties are precluded from discussing at the inception of each mediation session their immediate concerns, it will impede the ability to resolve other, sometimes larger issues. For example, if one of the parties is offended because he/she is buying the dog food or the milk for the coffee, that issue needs to be reconciled before equitable distribution can be addressed. Also, safety as to children is obviously paramount and an interim, financial arrangement with strict compliance needs to be crafted.
The Role the Parties, Counsel, and Attorneys for the Child: Rule 5
While the role of the Mediator is important to mediation sessions, under Rule 5, parties to mediation are also considered vital to the process. Parties are more or less required to attend mediation sessions once they enter the Matrimonial Mediation Program. The Rules stipulate that “party participation . . . not only increases the likelihood of settlement, but also improves compliance with any agreed-upon terms and enhances the parties’ satisfaction.”
In terms of the parties’ attorneys, while they are “not required to attend” sessions, they are encouraged to do so. The Rules note that “attorneys play a crucial role in informing parties of their legal rights and responsibilities [as well as] the consequences of proposed solutions.” As such, if “counsel for either party is discharged or withdraws for any reason, the case will not proceed in [m]ediation.” Similarly, under the Rules, in “those cases in which an Attorney for the Child or guardian ad litem has been assigned, [m]ediation may not commence without the appropriate Attorney or guardian’s presence, unless the parties agree otherwise.”
Overall, the use of attorneys in mediation can be helpful to parties as well as to the Mediator. Many Mediators are offended by the presence of counsel. I am of the firm belief that this is misplaced. To the extent that counsel has the presumed respect of the Mediator, his/her neutrality can aid the attorneys in facilitating settlement in part or in whole of the case where clients are otherwise refusing to listen to their counsel. The Mediator can be assisted enormously by the attorneys in being provided disclosure and other compelling information, including their interpretation of case and statutory law. To the extent that a mediation produces in part or in whole an agreement, the Mediator should take the time during the course of the mediation session to use the services of his/her office to draft a stipulation, have counsel review it, and—only if counsel and the parties are comfortable—conduct a Voir Dire of the parties to have it executed.
In the second part of this article, issues related to the drafting of mediation agreements will be addressed from a substantive perspective. In my strong opinion, it is critical that the parties be made fully aware of statutory and case law so their decision on issues is educated and with full knowledge of what they are obligated to do and what they have elected to waive. An agreement must be entered into knowingly and voluntarily and cannot violate public policy.
Co-Authors: Judith E. Murphy and Kristen L. Woodford