Primarily servicing the greater New York City metropolitan area



LEONARD M.WEINER, ESQ, Ph.D.
DIVORCE SOLUTIONS
206 East 38th Street
New York, N.Y. 10016
(212) 370-1660

MEDIATION V. LITIGATION - DIVORCE SOLUTIONS SERVICES

Question #13:
Divorce mediation is mandated by Family Law court in Santa Clara County, California. It does not work. The vast majority of parties opt to go to court.

Why not a divorce arbitration service rather than a mediation service? Your answer may be, mediation gets both parties to agree and work out solutions, thus accept outcomes.

Again, at least in Santa Clara County, mediation is not being used extensively. One or both parties think they may "win" in the court setting. Their lawyers may have a hand in creating this thinking.

Court, after all is arbitration - decision by means of a judgment handed down by someone, in this case a judge.

Arbitration by non-legal personnel (i.e., no lawyers or judges) would be cheaper for the parties and probably achieve the same outcome.

I would appreciate and welcome your comments. I am interested in establishing an arbitration service for divorcing couples in the Bay area.

In advance, thank you for the benefit of your thoughts.

Answer:
Mediation does work, but it is not for everybody. Thereare only two things that the parties must agree upon.
1. that they do not want to give all of their hard earned money which they accumulated during the course of their marriage to their attorneys.
2. That they do not require a "pound of flesh" in order to reach a settlement of the issues.

All other matters are open for discussion. At Divorce Solutions the parties are guided by an experienced attorney-mediator through the process in which the parties themselves decide the optimum way to meet the needs of each one of the parties rather than create an adversarial situation in which one side must win and the other must lose. By satisfying the "needs" (not necessarily be "wants") of each of the parties, they are more receptive to complying with the terms of the agreement as opposed to having such agreement forced upon them or imposed upon them by an judge or arbitrator. In the event a matter cannot be resolved by the parties by mediation, we do provide the op arbitrating the particular matter which could not be resolved in mediation.

In summary, there are a number of alternative ways to resolve divorce matters. Some are better than others. Not all of them are appropriate in every situation. One should start with the least intrusive, least costly, both emotionally and financially, if it has any potential to be successful. This method is mediation. If mediation is not workable, arbitration may be the next best solution, if it is conducted in a responsible and professional manner, with express rules and regulations, including rules of evidence, right to discovery, etc. The adversarial system, namely the court system, should be the court of last resort.

Your reference to mediation not working in Santa Clara may be a reflection on the quality of mediation being offered to the parties. Are these experienced mediators trained specifically in divorce mediation and are they attorneys qualified and experienced in divorce law?

Mediation does work!

Leonard M. Weiner, Esq./Divorce Solutions

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