For those who have decided to formally end to their marriage, there remains the question as to HOW. All divorce processes operate within the backdrop of people’s legal rights and responsibilities as well as what could be suitable for the family. People often need help evaluating what process choice might work best given the particular circumstances, goals and temperament of the couple and the family needs.
Below are some considerations to determine if a negotiated settlement (whether through mediation, the Collaborative process or otherwise) is right for you:
What are my long-term and short-term goals as it relates to the divorce? Do I want to preserve family relations? Win at all costs? Be open to compromise in exchange for a quicker resolution?
How might my relationship with my spouse affect a negotiation and opportunities for joint problem solving?
Do I think my spouse would engage in meaningful negotiations?
What are my personal strengths to allow me to pursue what I believe is an appropriate solution?
How do I handle risk?
Do I have a support system in place?
How much control do I want in creating a solution?
What is my best alternative to a negotiated agreement?
What information do I not know that is necessary for me to understand? What would be the best way to get that information?
What do I think is a fair outcome and does it align with a realistic assessment of my legal rights and moral beliefs?
Assuming that (i) financial and other relevant information will be voluntarily shared, (ii) there is no immediate need requiring court-ordered intervention and (iii) no contested questions of law, people chose voluntary negotiations in order to:
preserve relationships
maintain control
focus on a cooperative solution
reduce risk
protect against the emotional toll, pace and expense of a litigated solution
A properly mediated solution, in particular, has been referred to as the “bedrock of today's dispute resolution process.” *
* “Mediation is a not a wave of the future. It is, according to New York's chief judge, a bedrock of today's dispute resolution process: a reasonable process for cost-conscious couple, seeking an alternative to lengthy and expensive litigation to end their marriage. To upend such an agreement should require clear and convincing evidence of a substantial flaw in the process — complete failure of financial disclose, evidence of coercive tactics by a spouse, a biased mediator, a participants' continual complaints during the process — before the agreement is vacated and the couple ordered to return to costly litigation in a re-opened marital dispute.” Irizarry v Hayes, 2020 NY Slip Op 50217