I was recently listening to a podcast from a North Carolina law firm during which the interviewee, an attorney, described her experience as a lawyer participating in divorce mediation.
She described at least three issues that sounded very much unlike New York divorce mediations.
First, she said it was her experience that lawyers are usually involved thoroughly in divorce mediations. They take part in the process as the representatives of each client. Both husband or wife (no same sex marriages in North Carolina) have their own attorney. They are there throughout the mediation sessions and negotiate right alongside the client. In New York in contrast, while attorneys certainly may take on that role, often they do not. Rather, it is common that the spouses engage in the mediation themselves. To the extent attorneys are involved, their participation is more likely as an advisor outside the mediation sessions themselves, and/or as a reviewer of any agreement reached.
Second, she said that the mediation takes place in a single all-day session. The parties schedule a whole day for the one session and, most often, resolve all issues -equitable division of property, custody, and support- on that single day. In New York, most mediators will tell you that it is more typical that a divorce mediation takes place over a few 1.5-2 hour sessions, perhaps 2-4 sessions total, usually depending on how complex the finances or contentious the couple.
Third, she said that the mediator acts as a shuttle diplomat. That is, the husband and his attorney are in one room, the wife and her attorney in another, and the mediator spends all day moving back and forth with proposals and counter-proposals, all the while urging a settlement and serving a “reality-check” (my words, not hers) function. In some ways, this is more akin to the traditional style of mediation coming out of labor relations rather than the mediation style embraced by most divorce mediators in New York. New York divorce mediators tend to let the parties discuss and decide the important issues on their schedule, and in front of each other.
A subtext here is cost. While a North Carolina divorce mediation that takes place as described above may be finished in a day, that day does not come cheap. The mediator and two attorneys may each be charging $300 an hour, bringing the total cost for the session to $900 an hour. An eight hour day works out to $7,200, and that is before the cost of drafting a separation agreement and divorce documents. In New York in contrast, because attorneys normally do not take part in the mediation sessions, the hourly cost of mediation is often much reduced.
Which is better? Whichever the mediating parties prefer. But if you want a North Carolina-style divorce mediation in New York, it may be hard to come by.