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Courts Are Sending Pending Matrimonial Actions to Mediation.Why?





Let's face it, the courts are a mess. They were backlogged before the pandemic so you can what the status is now. You need a visual? Ok, picture a a long straight road that ends at the courthouse just beyond the horizon. Now picture that that road is filled with bumper to bumper traffic but not of cars but of teetering towers of case files. The backlog clear now? Ah, but there are exits of this road and those exits are mediation.






In an effort to alleviate the backlog, courts are requiring matrimonial actions to see a mediator before proceeding. The mediators listed with the courts provide a 90 minute free consultation where the mediator explains the process of mediation. The parties then can decide whether to get back in line behind those towers of case files or ride down their own empty road, where they are in the driver's seat and they are in control. There are certain cases that are exempt from the mediation requirement specifically those that involve serious allegations of domestic violence.


Mediation is a completely confidential, cost effective way to reach an agreement on the terms of a divorce while maintaining control of the process, moving towards resolution faster and improving your own communication skills through the journey.

In traditional contested divorce, both parties retain their own attorneys and the communication between the parties ceases and the parties now communicate only through their lawyers. The dynamic becomes a wife versus husband or vice versa by the very nature of litigation where parties are pitted against each other. Court battles can take months or even years and can cost tens to hundreds of thousands of dollars and in the end the decision is made by the Judge which inevitable leads to a win-lose result. The level of conflict between parties only increases in this dynamic and studies have shown that the true measure of child adjustment to a divorced context is directly related to the degree of conflict between the parents independent of the specific arrangement.


In mediation both parties retain one Attorney Mediator and can share that cost. The Attorney Mediator may charge a flat fee or per session depending upon the complexity of the divorce and the level of conflict between the parties. The Attorney Mediator acts as a neutral third party who facilitates the dialogue and guides the parties to the agreement that they deem best for them and their family. The Attorney Mediator does not make decisions for the parties, as a judge does. In mediation the power is always in the parties’ hands therefore by the conclusion of mediation it is always a win-win for both parties. The Attorney Mediator can present the law and identify issues that that may need to be discussed, for example child support or parenting arrangements. The Attorney Mediator will then aid direction of the discussion so as to assist in the arrival of an agreement on each and every issue. If necessary, the Attorney Mediator can recommend and employ the use of outside professionals like actuaries to determine values of assets or parenting coordinators to aid in the assisting of complex child care issues or when a specific expertise is required. Through the mediation process communication is built between the parties and the temperature of the conflict turns down as both parties are guided to recognize their commonalities as their move toward dissolution. This dynamic is particularly helpful when there are children involved, as stated above.


At the conclusion of mediation, the Attorney Mediator can draft any and all necessary documents and agreements and file the necessary paperwork with the courts as an uncontested divorce where no appearances will be required. So if the courts are going to make you see a mediator anyway, why waste the time and money of hiring lawyer filing in court and then coming to mediation. Wouldn't the wisest step to be to go straight to mediation?


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