Mediation is the best option for families that seek to negotiate and achieve an agreement. The mediator, who can also be a family lawyer, acts as a neutral third party guiding all parties involved to reach a compromise by improving mutual communication.
Choosing a reputable lawyer / mediator, with a successful cross border track record and – ideally – multicultural & bilingual understanding should be your first step when facing insoluble conflict or separation.
Although amicable agreements can be reached without a third party, a lawyer is essential to guarantee the agreement elements are legal and enforceable cross borders.
The ideal mediator should make you feel comfortable and be balanced enough to maintain integrity during the entire process.
Through arbitration, a couple can submit a dispute to an arbitrator who will make a binding decision for the parties. This is a private dispute resolution. Although, in common law countries, the arbitration process is easily used in family matters, this is less developed in civil law countries where the judge traditionally keeps a strong role.
However, faced with the extreme burden of family conflicts on their judicial systems, arbitration is developing – at least for financial matters – for matrimonial and estate matters.
Arbitration is a confidential and consensual process, where the parties choose neutral arbitrator(s).
Besides mediation and arbitration, there are more alternative dispute resolution methods, including collaborative law, where the clients and their lawyers enter into a contract to constructively negotiate an outcome without resorting to litigation.
As a rule, no outside solution is forced on the parties. Mediation is usually cheaper and faster than litigation.
Settlements can also be more creative in their solutions and through the confidentiality of the mediation process, the relationship between the parties may be protected.
Mediation is not advised in the event of domestic violence or strong imbalance of powers within the relationship.
Although the New York court retains jurisdiction over certain issues, agreements made in divorce mediation sessions are usually upheld by New York courts, if judges do not identify major issues with them.
The courts must always rule in the best interests of the children. For example – the court may not enforce a separation agreement where the custody or parenting time provisions are not considered to be in the best interest of the children.
Experienced mediators can stop negotiations at any point if they believe that one of the parties is the subject of violence or if there are allegations of child abuse in the family. In such a case, confidentiality rules may not apply anymore.
It’s not wise to combine the roles of mediator with any of the parties personal lawyers, nor a “review attorney”. A mediator is supposed to be a neutral individual in the dispute process.