The Mediation Process and When You Should (or Should Not) Choose Mediation


As an attorney that has been practicing Matrimonial and Family Law for over ten years, I’ll admit that I was not a big fan of Mediation until recently. I have always been a big proponent of settling cases out of court, but it seemed to me that the best way to do that was to have lawyers for each party representing their best interests, ensuring that every base was covered and that their rights were protected.

Too many times during the course of my career I’ve had a potential client come to me with a mediated agreement that they felt was either not being followed, or they wanted modified. These agreements often had vague terms that made it difficult to interpret, or the terms were so obscure that they were impossible to follow, and even harder to enforce. For that reason, I felt that mediation caused more problems than they solved.

However, as time went on in my career, I started thinking more and more about training in mediation, so I could offer it as an alternative way to resolve a divorce or family law issue. While I am passionate about helping people resolve these problems, a lot of times it feels like litigating these issues create more problems than it solves. My clients are going through some of the worst times in their lives, and litigation often fuels the fire. For example, if a single issue like custody or support cannot be resolved out of court, the only alternative is to make a motion and ask the court to decide. This invariably involves digging up as much dirt as you possibly can about the opposing party and carefully crafting a document that explains why this person is the most awful human being imaginable. In turn, the opposing party then responds to the motion by detailing every awful quality of the other party and explaining why it is actually the other party that is a horrible human being. In short, a lot of times litigation takes a strained relationship and damages it beyond repair, to the point where these people who once promised to love each other forever cannot even be in the same room together.

This kind of “mud-slinging” is just not what I envisioned as a career. At the risk of losing some business, if you are looking for a “shark who will take [your] ex for everything they are worth”, I am probably not the lawyer for you. This is not to say that I cannot be an aggressive lawyer. When the situation calls for it, I can write a mean motion and argue my heart out in Court. I’ve been successful on almost every Objection I’ve filed in Family Court and almost every appeal I’ve made to the Appellate Division. I am especially passionate about children (even more so since I became a mother of 4), and if they are being used as pawns or being alienated from a parent or loved one, I will do everything necessary to expose that in Court and take steps to ensure no more damage is done. However, helping someone get revenge because they’ve been scorned simply is not for me. I want to help untangle the issues surrounding the end of a marriage, not make them worse.

Becoming educated in the mediation process was an eye-opening experience. I assumed that mediation was not much different than having a settlement meeting as an attorney. I was very wrong. It is very rare during a settlement meeting that the clients are actually able to take the lead. The attorneys do all the talking and negotiating, with the parties usually scribbling notes to their attorney while the other side is talking, and either agreeing or disagreeing with what is being said. When we come to an area where we cannot come to an agreement, whether it pertains to dividing assets, support payments or time with the children, it is often resolved by simply “meeting in the middle” for the sole purpose of getting to an agreement, without considering whether or not this resolution really benefits the family.

Conversely, with mediation, it is the parties that take the lead, with the mediator acting to guide the parties to a resolution that works best for them. While knowing the law is certainly helpful, no one is bound to it when determining a solution that works best for your family. In mediation you take the time to explore why each party wants things a certain way, and we usually find out the parties have a lot of common goals: i.e.: they want to make sure their children are taken care of, they want the children to have time with both parents without being shuffled around too much, they want to ensure that their family is supported but they also want to make sure they can pay their own bills. Once this comes out, it often becomes a lot easier to figure out a resolution that everyone is happy with, especially since the parties are on the same team and working towards a common goal, rather than in an adversarial position. A comparison of the two engagement agreements highlights how different the processes are. Click here to see a sample retainer agreement and here to see a sample mediation engagement agreement.

So why do I still practice law? Why don’t I shut down my law practice and concentrate solely on mediation? Unfortunately, not every situation can be mediated, and not every case has two reasonable parties that are able to put their personal feelings aside and figure out what would best work for everyone involved. In order to engage in mediation there needs to be an ability for the parties to speak freely. There cannot be a power struggle between the parties, or someone who is “dominant”. Most importantly, there needs to be a commitment to work things out amicably by both parties. If this is not the case, then mediation will not work, and in that case a lawyer is needed to either help negotiate fair terms or seek court intervention. If you are a candidate for mediation, I believe that my experience as an attorney is invaluable to the mediation process, as I am all too aware of the pitfalls that can lead to the breakdown of an agreement, as well as how to draft the terms of the agreement so that they are clear and easily interpreted, so you hopefully will not have to step foot in a courtroom at a later date.

How do you know if you are a candidate for mediation? Well, first of all, you need to be able to speak with your spouse about whether they are willing to engage in mediation as well. You do not need to be on good terms. Your marriage is ending for a reason. There are many cases in which the marriage has ended due to infidelity or other acts of betrayal. The feelings accompanying the end of the marriage are not ignored, but acknowledged during the mediation process, and the idea is to get to a point where you can move past these feelings and transition to your new roles in each other’s lives, if any.

Mediation is not for you if any of the following applies to your situation:
– you or your spouse are physically, emotionally and/or verbally abusive
– you believe your children are in danger if left alone with your spouse unsupervised
– you or your spouse abuse drugs and/or alcohol
– you or your spouse is financially controlling

Additionally, you and your spouse have to be able to work out for yourselves how the mediation will be paid for. The financial benefit is that you are only paying one fee, rather than each party paying their own attorney. Also, there is no motion practice, nor are there Court appearances, which makes the process cheaper. As each session is paid for at the time of the meeting, you will have to determine who will be making the payment, or if you will be splitting the fee in some fashion. If you cannot come to an agreement on this issue, it is unlikely you will be are ready to mediate the other issues surrounding your divorce 🙂


If you are interested in mediation, or are seeking a matrimonial or family law attorney, please contact Rachel Silberstein, Esq at 646-470-0780 or email her at Consultations are available in Long Island, lower Manhattan or by telephone.  Please visit for more information

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