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S4 | MONDAY, AUGUST 7, 2017 | Alternative Dispute Resolution
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Divorce Mediation and ADR
the role of divorce mediator, were not well understood. Importantly, divorce mediation seeks to reduce the negative influences of the adversarial divorce process and its empha- sis on “winning” as much as possible. The divorce mediator presents to the parties a different way for them to communicate with one another, and teaches them how to resolve their own conflicts between themselves.
In Bauerle v. Bauerle, 206 A.D.25 937 (4th Dept. 1994), one court did acknowledge the role of mediators and, specifically, attorneys acting in the capacity as mediators, stating that “mediation and other means of conflict resolution is an accepted standard of prac- tice ... conducted by lawyers.” This decision further cited The American Bar Association Standards of Practice for Lawyer Mediators in Family Disputes [ABA Standards], as well as the Model Standards of Practice for Family and Divorce Mediation of the Association of Family and Conciliation Courts [Model Stan- dards]. However, New York state has yet to adopt the Model Standards. But even in the Bauerle decision, the court did not fully dis- tinguish between the roles of matrimonial attorney and divorce mediator, finding that the “preliminary orientation session [in the mediation process] is materially indistin- guishable from the initial consultation with an attorney.”
Although divorce mediation is not meant to provide therapy to the parties, professionals in various disciplines have been referred to as “mediators,” including therapists, parent coordinators, and court personnel, and dif- ferent kinds of services and advice have been referred to as “mediation.” In addition, the court has recognized as “mediators” third parties who held themselves out as such, such as friends and associates, and even the court system itself.
In Dodd v. Dodd, 93 Misc.2d 641 (Sup. Ct., N.Y. County, 1978), the court viewed itself as a divorce mediator of sorts, stating that “the courts, in dealing with the difficult issues raised by child custody litigation, should con- sider joint custody as an option, particularly in performing their little noted but frequently exercised role as mediator before trial.”
In Silbowitz v. Silbowitz, 88 A.D.3d 687 (2d Dept. 2011), the court appointed a par- ent coordinator to “mediate” between the parties and oversee the implementation of a court ordered parenting plan. Although the designation by the lower court of the role of the parent coordinator in this case was to “mediate”, the appellate court nonetheless held that the power of the parent coordinator was limited to implementing the terms of the existing child custody and visitation arrange- ment, and that the court may not delegate to the parenting coordinator the authority to resolve issues affecting the best interests of the children.
In Headley v. Headley, 139 A.D. 855 (2d Dept. 2016), the Appellate Court also held that, “in custody and visitation matters, a court may appoint a parenting coordinator to mediate between the parties and oversee the implementation of their court ordered parent- ing plan.” The lower court concluded that the appointment of a parenting coordinator would be in the child’s best interests, due to the fact that “the mother’s attitude and behavior created a ‘very negative climate,’ » Page S11
In New York Courts
BY JORDAN E. TRAGER
Generally, there are two forms of alterna- tive dispute resolution: mediation and arbitration, each of which has different applicability in divorce matters.
Arbitration is a process similar to litigation, whereby the parties generally follow rules of law and procedure, utilizing the services of a referee, or arbiter. The determination of the arbiter is binding, subject to the decision being submitted to a Supreme Court judge to be confirmed. An appeal may be taken only if the decision is arbitrarily made.
Mediation is a process that allows the par- ties themselves to determine the outcome of their own divorce. In that regard, the role of a divorce mediator is to assist the parties in resolving their marital conflict on their own, and to help them arrive at their own resolu-
JORDAN E. TRAGER is an attorney at Wisselman & Associates, and has over 20 years of litigation experi- ence handling matrimonial and family law matters.
tion of their divorce for both themselves and for their children, in what is referred to as a “win-win” process.
The first serious look by the New York state courts at alternative dispute resolution, as a means of resolving marital disputes, came shortly after the American Arbitration Asso- ciation wrote a memorandum, entitled “Mari- tal Disputes Arbitration” in November 1963. Following this memorandum, the courts held that “the American Arbitration Association is now equipped to arbitrate marital disputes arising out of separation agreements.” Sheets v. Sheets, 22 A.D.2d 176 (1st Dept. 1964) (look- ing at alternative dispute resolution of mari- tal disputes through the prism of arbitration rather than mediation).
In its initial decisions, the courts held that parties may be permitted to arbitrate custody and visitation matters, as well as child sup- port matters, but that the courts may ignore the arbitrator’s findings and make their own determinations if the court specifically deter- mined that the arbitration award adversely affect the substantial [best] interests of the child as to custody and child support mat-
ters. See generally Sheets, supra; Schneider v. Schneider, 17 N.Y.2d 123 (1966); Adams v. Rhoades, 56 Misc.2d 249 (Fam. Ct., N.Y. County, 1968).
This case law has since evolved and changed. Later decisions by the courts have held that parties may not be permitted to arbitrate custody and visitation matters, and that the courts must make their own deter- minations on the basis that the court’s role as parens patriae must not be usurped in custody and visitation matters, while the parties may arbitrate child support mat- ters, provided, however, that the decisions comply with the Child Support Standards Act and are in accordance with the best inter- ests of the children. See generally Hampton v. Hampton, 261 A.D.2d 362 (2d Dept. 1999); Hirsch v. Hirsch, 4 A.D.3d 451 (2d Dept. 2004); Schechter v. Schechter, 63 A.D.3d 817 (2d Dept. 2009); Goldberg v. Goldberg, 124 A.D.3d 779 (2d Dept. 2015).
Until recently, divorce mediation was rarely recognized by the courts as a separate disci- pline apart from other forms of conflict resolu- tion. The objectives of divorce mediation, or
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