7 Thurlow Terrace
Albany, NY 12203
Tel.: (518) 436-5409
Fax: (518) 455-8907
646 Plank Rd, Ste 206
Clifton Park, NY 12065
Tel.: (518) 371-8608
Fax: (518) 455-8907
Copyright © 2010
Jeffrey M. Cohen, Esq.
All Rights Reserved
• • • • •
Here you will find some frequently asked questions about family and divorce mediation. PLEASE NOTE: It is suggested that
you read these questions in the order presented.
- What is mediation?
- What are the advantages and benefits of mediation?
- What is
your training?
- What are the cornerstones of the process?
- What is impartiality and how does it differ from neutrality?
- What is self-determination?
- Informed
decision-making: Are lawyers necessary to the process?
- What about the use of other professionals?
- What is the process?
- What
topics are addressed in the process?
- What is the final product?
- Where do you perform your services?
- Are you available to give a presentation to my organization about the benefits of mediation?
Mediation is a method of dispute resolution which allows
participants to resolve their own disputes. This process differs from both litigation and arbitration, where a judge or arbitrator
imposes decisions upon you.
As a mediator, I act as a neutral professional who assists individuals in resolving their own issues rather
than risk uncertain outcomes which may be imposed upon them by the courts. Through the use of proactive, psychologically based
interventions and techniques, I help my clients think creatively, avoid or overcome impasses and, finally, I help them to develop
creative and comprehensive agreements which they find to be fundamentally fair by their own standards.
WHAT
ARE THE ADVANTAGES AND BENEFITS OF MEDIATION?
1. Mediation is less time consuming. The duration of litigation
can, at its worst, be measured in years whereas the duration of mediation is measured in hours. The average divorce mediation,
including the preparation of the final document, is accomplished in less than fifteen hours. Because resolution occurs quickly,
children are not exposed to the stress created in households resulting from prolonged litigation.
2. Mediation is substantially
less expensive than litigation. A process which takes hours to complete will be much less expensive than a process that takes
months or years to complete.
3. Conflicts created by an adversarial justice system can be eliminated. Rather than
risk resolutions which can be imposed upon you by the courts, you are in complete control of all decisions which must be made. You
create your own agreements on your own time schedules and in your own words.
4. Communication and understanding between
conflicted parties is enhanced and trust can be restored through the exploration of each party’s goals and concerns.
5. Mediation
can resolve developing conflicts before they mature into a crisis – parties often attend mediation when they anticipate issues may
arise in the future.
I have many hundreds of hours of training in the many models
of mediation and the various psychologically based interventions and techniques which mediators use to assist their clients. I
have training in the dynamics of divorce and separation, the anatomy of anger, neuro-linguistic programming, conflict dynamics, the
effect of divorce and separation on both adults and children, the creation of parenting plans, the division of assets and liabilities,
the tax ramifications of divorce, and strategies for insulating children from their parents’ struggles.
Through my training,
I have achieved the status of “Advanced Practitioner in Family Mediation” from The Association for Conflict Resolution, the largest
qualifying organization for mediators in The United States. In order to maintain my status, I must engage in continuing mediation
education training on a bi-annual basis. I am also a mediator approved by The American Arbitration Association.
In addition,
I wholeheartedly abide by “The Model Standards of Conduct for Mediators”, a set of ethics and standards for mediators which has been
approved by The Association for Conflict Resolution and which has been jointly approved by The American Bar Association and The American
Arbitration Association. I have also trained with many of the finest mediation trainers and training programs in both the
My extensive experience as an attorney
contributes to my ability to mediate effectively. I have been an attorney licensed to practice in The State of New York since
1984. Although my practice has concentrated in mediation since 1992, my areas of concentration include Matrimonial Law, Family
Law and issues relating to family owned businesses.
In addition, I have been a Law Guardian (children’s advocate) certified by
the New York State Appellate Division, Third Department, since 1987. For more information regarding my qualifications, please
click on the “Background and Training” section of this website.
WHAT ARE THE CORNERSTONES OF THE PROCESS?
The
three cornerstones of the mediation process are:
1. The absolute impartiality of the mediator; and
2. Self
determination of all issues by the participants; and
3. Participants must make educated, informed choices.
Cornerstone #1:
WHAT IS IMPARTIALITY
AND HOW DOES IT DIFFER FROM NEUTRALITY?
As your mediator, I am “neutral” as to your final outcome but I am “impartial” in conducting
the process of mediating your dispute. The distinction is important. “Neutrality” means that I have no agenda and that I take
no stake in your outcome. You create your own agreements.
The concept of “impartiality” relates to the actual process of mediation
that leads to the creation of your final agreements. This concept, sometimes called “omnipartiality”, means that during negotiations,
I must be on both sides and on no side at the same time. This allows me to help each of you think creatively, develop your options
and ensure that both parties are negotiating in an emotionally safe atmosphere. Ultimately, my clients are able to address their
concerns and achieve mutually acceptable solutions to their disputes.
Cornerstone #2:
According
the “Standard I” of “The Model Standards of Conduct For Mediators”, adopted by the Association for Conflict Resolution and approved
by the American Bar Association and the American Arbitration Association, “Self Determination” is the act of coming to a voluntary,
uncoerced decision in which each party makes free and informed choices as to process and outcome.” This means that the participants
in the process are in complete control of all decisions which must be made.
Cornerstone #3:
INFORMED
DECISION-MAKING: ARE LAWYERS NECESSARY TO THE PROCESS?
In most mediation cases, lawyers play an important but limited role. It
is important for you to understand all of the intricacies that go into achieving a comprehensive settlement, including how the law
might apply to your situation.
Since it is unethical as a matter of law for one attorney to represent two individuals who may
have disagreements simultaneously, I am unable to give legal advice to both parties without creating a “conflict of interest”. It
is thus my strong recommendation that each party to the mediation process consult with an attorney of his/her own choosing either
prior to or shortly after commencing the mediation process. Although attorneys are not present in the process, they will give
you independent legal advice about the topics you must discuss in mediation. Once educated, you can either decide to adopt the law
as it relates to your case or you can choose to “opt out” of the law and create your own law for you and your family. You should
also know that “opting out” is not some strange concept associated with mediation…every separation agreement in The State of
New York is, by law, called an “Opting Out Agreement”.
At the end of the mediation process, your attorneys will review your final
mediated agreement to ensure that you understand the legal ramifications of the choices you have made and, finally, they will prepare
the legal documentation necessary to achieve your goals. Remember, the decisions that you make in mediation can, in many cases, have
lifelong consequences. Having a personal, trusted and objective advisor will give you the knowledge necessary to make comfortable,
meaningful and long lasting choices.
WHAT ABOUT THE USE OF OTHER PROFESSIONALS?
My clients do not
necessarily limit themselves to speaking with attorneys in order to make informed choices. Depending upon the issues you bring
to the table, you may want to speak with other professionals in order to obtain the information necessary to make informed choices.
I have had clients who have consulted with accountants, financial advisors, business consultants, psychologists, human resource advisors
and appraisers, to name a few.
Generally, I meet with my clients weekly. Depending upon the issues presented, these sessions can run from one to several hours. I ensure that all topics which must be considered are discussed…; don’t worry, you will not miss anything! I cover all topics which you must consider in order to achieve a comprehensive agreement.
In our sessions, I use various psychologically based interventions and techniques to have my clients “shift”
from “positional bargaining”, (“win-lose” negotiation) to “interest-based negotiation” (“win-win” negotiation). Creative solutions
are achieved by exploring mutually advantageous models which serve the interests of both of my clients. At the end of each session,
I will tell you what we will be covering in the next session and I will explain to you how to prepare for the next meeting.
WHAT TOPICS ARE COVERED BY THE PROCESS?
I like to categorize the decisions that must be made in mediation
into four “bundles”. The first “bundle” of decisions relates to the parenting plan for your children. These decisions include:
-
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Where will the children reside?
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How will the parents divide the holiday and vacation periods?
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How close or far away can the children reside from each parent?
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Other parenting issues (such as the selection of child care, attendance at children’s functions, religious training and contact with extended family).
The second “bundle”
of decisions relates to the economics of raising children. These decisions include:
-
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Who will provide health insurance for the children and how will it be paid for?
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How will uncovered medical expenses be paid?
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How will child care be provided?
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How will tuition for private school and college be paid?
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Is life insurance necessary?
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What tax ramifications must be taken into consideration?
The third “bundle” of decisions relates to the division of assets and liabilities. These decisions include:
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What are the assets of the marriage that must be divided?
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What are they worth and will there be a need for appraisals to determine the value of assets prior to continued negotiation?
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How will you divide your assets and liabilities?
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What are the tax ramifications of the division of your assets?
The fourth “bundle” of decisions relates to whether there will be a need for spousal support. These decisions include:
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Is spousal support necessary?
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If so, what will be the payment?
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If so, what is the duration of the obligation?
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What are the tax ramifications of this obligation?
The above lists are
by no means comprehensive, but they do give you an idea of the types of decisions which must be made. During the mediation
process, other topics are sure to arise that are unique to your circumstances.
At
the end of the process, I will prepare a “Memorandum of Understanding” containing all of the specific terms of your agreement. This
is not a legally binding document. It is my intention that each of you review this Memorandum with your respective attorneys
to ensure that you have achieved your goals and to ensure that you understand the legal ramifications of your choices. The attorney
will then simply draft the appropriate legal documents to make your decisions binding.
WHERE DO YOU PERFORM
YOUR SERVICES?
Although I conduct the majority of my meetings at my offices in
ARE YOU AVAILABLE TO GIVE A PRESENTATION TO MY ORGANIZATION ABOUT THE BENEFITS OF MEDIATION?
I truly enjoy
public speaking! If you would like me to educate the members of your organization about the advantages and benefits of mediation,
please do not hesitate to contact me. I will tailor a presentation to meet your specific needs.