Separation Agreements Reached Through Mediation
In this day and age, mediation is becoming more widely used in New York divorce cases. Divorce mediation is a process in which a professional, experienced mediator works with the parties to a divorce to attempt to reach a settlement of issues in a case.
A mediator facilitates negotiation between the parties to a divorce, but does not make decisions for them. A mediator provides a structure and guidance for negotiations between the parties.
Common types of issues that are raised in medication include child custody and visitation or parenting time, property and debt distribution or division, and really any issue that might come up during a particular divorce case.
How the Divorce Mediation Process Works
The divorce mediation process commences with a mediator providing detailed information about it to the participating divorcing couple. The mediator makes certain that the parties fully understand the medication process.
At this juncture, the mediator presents an agreement to mediate to the parties. Once they’ve had the chance to fully review the document, they each sign the agreement mediate.
The next phase is the actual mediation of issues. An attempt is made to resolve all issues brought to the table via the mediation process.
Keep in mind that mediation is a confidential process, with one primary exception. The mediator has the ability to communicate what is going on in the mediation process to the court. This particularly is the case is a court ordered the parties in a divorce case to submit to mediation.
Once the issues have been addressed the agreements reached between the parties is committed to writing. The agreements about issues reached by the parties becomes the foundational element of the overall separation agreement in the case. Ultimately, the separation agreement, including specific agreements reached during mediation, can ultimately become the order of the court and fully binding on the parties.
Court Approval of Mediation and Separation Agreement
If the mediation ends up resolving some, but not, all of the issues between the parties to a divorce, that partial resolution of issues is presented to the court. The presiding judge reviews what has been resolved and if it meets muster in the court’s eyes, will become part of the ultimate divorce decree in the case.
As to any unresolved issues, the court will schedule the case for a hearing or a divorce trial, depending on what remains unresolved. During these further proceedings, the parties to a divorce case present evidence to the court and make arguments in regard to any unresolved issue.
If the mediation process resulted in a resolution of all issues in a divorce case, that becomes the separation agreement itself. The court reviews the separation agreement developed through mediation. If the agreement is acceptable, the court will incorporate it into the final divorce decree.
A court order in a divorce case is like an order in any other type of judicial proceeding. It is binding on the parties to the case. The failure to follow a court order, including a divorce decree, can result in the court sanctioning a party that fails to comply.
Lawyers and the Medication Process
Oftentimes, the parties to a divorce case that become involved in mediation are represented by legal counsel. Indeed, a person seeking a divorce best protect his or her legal rights and interests by retaining legal representation. This protection of legal rights extends to and through the mediation process.
As a general rule, attorneys do not sit in on mediation sessions. There are instances in which they may be included, at least for a bit, during an initial meeting in a mediation.
What a lawyer does do in a mediation is review any agreement that comes out of the process. The agreement arising from a mediation is a contract. An individual in a divorce case has the right to have such an agreement reviewed by his or her legal counsel before signing off on the contract.
Unenforceability of a Mediation Agreement
There are some rare instances in which an agreement that arises out of a mediation will not be enforceable. One situation in which a separation agreement coming out of mediation may prove to be unenforceable is if one of the parties was laboring under some sort of mental health issue and was not legally competent to enter into a settlement agreement associated with mediation. In such a situation, these issues end up being resolved by the court.
If a party to a mediation provided inaccurate information during the process, an agreement that was reached may also prove to be unenforceable. For example, if a party to mediation provided false financial information that was relied upon during the mediation process, an agreement arising out of that process would not be enforceable.
Finally, if some type of overreaching or coercion occurs in the process, any agreement that might come from mediation is not likely to binding. For example, if one of the spouses threatens the other to agree to certain things during mediation, that type of conduct is totally unacceptable and can render the agreement unenforceable.
As an aside, when a court reviews a separation agreement arising from mediation, the judge will also question the parties to the case about whether the agreement was reached without any pressure or coercion. The mediator will also verify that to the best of his or her knowledge the process was voluntary.
Hire an Experienced New York Divorce Lawyer
Whether or not your divorce case will involve mediation, you do best protect your vital legal interests by retaining the services of an experienced New York divorce lawyer, like an attorney from Spodek Law Group. You begin the process of hiring a lawyer from the firm by scheduling an initial consultation.
A Spodek Law Group divorce lawyer will provide an evaluation of your case and will explain the mediation process to you. You will also have the opportunity to raise any questions you may have about your case, including how and when a mediation separation agreement is binding. There is no lawyer fee assessed for an initial consultation.