{4 minutes to read} At a recent conference for divorce and family mediators that I attended, I heard a panel consisting of judges, hearing officers and law clerks speak to the reality of the court process. Here are some of the negative consequences they raised:
Timeframe
Although there are rules that say the entire process in New York County would be “trial ready” in less than a year after filing, the reality is that it could be two years or more to get to that stage. This is especially true in a case in which there are extensive financial matters or parenting issues to be addressed.
In mediation, you control the time frame and the matter will proceed at a pace that you both want.
You are subject to the court’s mandate and control.
Judges make it painfully clear that they are in control of the courtroom, and by extension, in control of you and your family. They focus on pushing litigants to settle, but the terms are those that the judge believes each of you should accept. The judge will also let you know what could happen at a trial if you don’t agree to what the judge feels is a reasonable settlement.
In mediation, the focus is on getting to a settlement that meets each of your respective interests and the interests of your children. That might mean that the two of you agree on an option that is in the best interest of your family, but is very different from what a judge would suggest as a “reasonable settlement.”
Your children could be part of the court process.
If you cannot agree on a parenting plan, one of the judges was clear that he would order an attorney for the children; forensic psychological evaluations of the parents and the children; and then possibly a meeting between the judge and the children. This involves your children in a process that is at best intrusive for them and at worst, traumatic. Ultimately, the judge would weigh all of this in terms of making a decision as to with whom your children will reside and the access they have with each of you after a trial.
In mediation, your children are not present, and you retain the right to make decisions about where they reside and how you share access with them. If you can’t agree in mediation, there are some options for you to explore:
You can seek the input of a child specialist to help the two of you sort things out; or
You could have a child inclusive mediation process. This means that a mental health professional (MHP) who is trained in this process, would meet with you. In a safe place, the children are encouraged to talk about their experiences with their parents’ conflict, as well as their thoughts and needs regarding the future.
After that meeting, the MHP joins the parties for a feedback session and explains the child’s particular experiences and what may likely happen if there is no change in the child’s experiences. Both the MHP and the mediator support each parent’s understanding of the impact they have on the children and their ability to change to a focus on co-parenting that enhances a more positive outcome for the children.
This is the opposite of a court process which is threatening to both the parents and the children.
There are definitely some divorcing couples who need to avail themselves of a court process, but for those who don’t, mediation provides a better process according to judges and court professionals who deal with it first hand.