COURT TV, AUGUST 18, 1997 10 A.M. – 11 A.M.
GUEST: STEVEN ABEL, DIVORCE MEDIATOR
- What Is Divorce Mediation?
- Prenuptial Agreements And Mediation
- Essential Elements Of Mediation
- What If One Side Is Unwilling To Participate In Mediation?
- How Long Does Mediation Take?
- Mediation And Child Support Agreements
- The Different Styles Of Mediation
- Tips For Successful Divorce Mediation
The following are excerpts from the viewer call-in portion of the program.
MS. GRASSO: Today is family day — We’re going to take a look at divorce mediation, going to a third party to help you break up nicely, or as nicely as possible.
There are a lot of questions, obviously, with using a mediator in a divorce case, and here to help us address those questions is Steven Abel, an attorney and mediator at the Center for Mediation & Training in New York City, and Steven has also written a how-to book called The Friendly Divorce Guide for New York.
The Friendly Divorce Guide. Well, you know — right there I think you have a problem. Is there such a thing as a friendly divorce?
MR. ABEL: Well, some people think it’s an oxymoron, but it’s not really. There are people who do it. In fact, there are a lot more friendly divorces than you know about. The simple fact is, you see, it’s just not traumatic. Watching the mediation, it’s that old Herb Reiner line, it’s like watching haircuts. It’s just kind of dull. When they’re friendly, there’s not a lot to talk about.
MS. GRASSO: But if they’re friendly, why are they getting a divorce?
MR. ABEL: People grow apart. It’s part of our lifestyle. It’s part of people living longer, I guess. It’s a lot of things, but, you know, I’m sure you know roughly half of all marriages end in divorce, so if it’s that large a number, this is a pretty normal event.
WHAT IS DIVORCE MEDIATION?
MS. GRASSO: Let’s talk about the mediation. Now, my initial perception before I read this was that, well, maybe you mediate, because sometimes people say they go to the divorce lawyer and they end up getting back together. Do you ever mediate to get back together?
MR. ABEL: Well, that’s not my goal. I mean, I’m not a marriage counselor —
MS. GRASSO: (Laughs.) Well, isn’t that sad?
MR. ABEL: It is, in a way. It is.
MS. GRASSO: No, I like you to be honest. Go ahead.
MR. ABEL: It’s true. I’m not mediating to get them back together, because that’s marriage counseling. It’s a different field. And I didn’t take that training.
MS. GRASSO: All right. So you’re mediating for what?
MR. ABEL: — we’re mediating for divorce, but it’s that question about marriage, though, it’s kind of — it’s always been the experience, everybody who does this will tell you, a lot more couples in mediation reconcile than couples in adversarial divorce. It’s not a big number. I’m talking about the difference between a half of 1 percent and maybe 2 or 3 or 4 percent — but I’ve had a number of couples in the middle call me up and say, “Steve, we’re canceling the next appointment. We’re getting back together. We’re seeing a marriage counselor.” I say, “Great! Terrific!” I mean, that’s a happy result. It’s just not all that common.
MS. GRASSO: Now, when I was reading about mediation, my initial thought was that there are three people sitting around a table and you’re all talking — and talking or yelling or whatever — now, but you also take them apart.
MR. ABEL: That’s one of those aspects of mediation that has a little controversy around it.
MS. GRASSO: Okay.
MR. ABEL: Should you meet separately with the couple — it’s called caucusing. Should I caucus with him and then should I caucus with her, and what happens is I try not to — I’m not criticizing people who do. There are mediators who do it routinely. I try not to. I find that if I spend a little extra time, everything I can accomplish in a caucus I can do in public — with “public” meaning both of them, the very big public, as it were –but just the two of them in the room, if you’re, you know, a little careful about how you ask your questions, you can get the same things on the table as you can in the caucus. Yeah, I can do it faster in caucus, I can be much more abrupt and much more direct, but it creates paranoia.
MS. GRASSO: Now, what happens — at the end of the mediation session, let’s say you’ve got — they’ve both decided on what they want —
MR. ABEL: Right.
MS. GRASSO: — do you draw up a contract, or an agreement?
MR. ABEL: Yes, absolutely.
MS. GRASSO: And does a judge still have to approve that?
MR. ABEL: New York state is different from some states. In New York state, judges do not approve separation agreements, which in New York state are the divorce agreements. We have a little terminology problem there —
MS. GRASSO: Okay, well, that doesn’t surprise me.
MR. ABEL: — the words we use — yeah, I mean, you know, this is a field where up until recently divorce was truly a dirty word, so you couldn’t have a divorce agreement. That was, you know, tantamount to heresy — so we have separation agreements in New York. Judges only approve the part that deals with child support. That’s the only part that they specifically —
MS. GRASSO: And custody?
MR. ABEL: — approve. They really don’t approve the custody part.
MS. GRASSO: Really? That’s surprising.
MR. ABEL: No. Parents are pretty much free to do what they want, how they want to, with regard to custody. The judges will not look in on it. There’s a theory, you might say, that if you meet minimal societal standards — that is, there is some form of custody — that the parents have not agreed to abandon their children, but nobody ever does that, so it’s kind of silly.
MS. GRASSO: Now, what about the cost? Is the big advantage in mediation that it’s cheaper than hiring a divorce lawyer? You do both, so —
MR. ABEL: Yeah. The dollar figure is almost always considerably cheaper. It’s not the only advantage. I don’t tout and I don’t sell it strictly because it’s cheaper — and that’s a factor, of course, it is cheaper. It’s also faster, but really the number one reason, it’s more respectful.
MS. GRASSO: Explain that, more respectful.
MR. ABEL: The whole process of mediation, of sitting down together, is more respectful of the couple than the entire process of divorces in the court system. The court system is an adversarial system. Adversarial means, in plain English, to fight.
MS. GRASSO: Right.
MR. ABEL: When you order people to fight in order to get what they want, they stop being respectful, and the system itself is, as a result, not that respectful of people who are fighting, because we don’t usually look all that nicely at people who are having arguments. We usually try to stop them from arguing. That’s human nature.
MS. GRASSO: Well, the nature of mediation is it’s more respectful of the couple, their children, their needs than the whole process of divorce is in the courts, and that’s ultimately what I think makes it more successful, as well as cheaper, as well as faster.
PRENUPTIAL AGREEMENTS AND MEDIATION
MS. GRASSO: Well, let’s go to our viewers and see what’s on their minds. It certainly sounds like a nicer process to me. Santo from New York. Hi. You’re on Legal Cafe. Do you have a question about mediate or divorce?
Q: Yes. I’d like to know — I have a prenuptial agreement with my wife, and she’s trying to get more money out of me.
MS. GRASSO: Okay. You’re headed for a divorce, I take it, or are you already in the state — are you already in court?
MS. GRASSO: You’ve filed for divorce already?
MS. GRASSO: Okay. Well, the prenuptial agreements — I mean, if they’re written right, if there was no duress, they pretty much stand up, don’t they? Especially in New York.
MR. ABEL: In New York state, they’re respected a great deal by the courts. When you’re really looking at it very, very, very closely, about the only way that I know of that someone will — that judges in New York will invalidate a prenuptial agreement is — there are two areas, actually. One is if there was not full disclosure of assets and liabilities when it was signed. The agreement must be very clear in demonstrating, showing right within the agreement that there was a full disclosure. So if she did not disclose to him or Santo’s wife did not disclose to him exactly what she had, he might have grounds to overturn it there.
MS. GRASSO: I think she’s trying to overturn his, and he wants it to stay in place.
MR. ABEL: Yes, he wants to make it stand up.
MS. GRASSO: He’s like Donald Trump —
MR. ABEL: Yeah, and it’s —
MS. GRASSO: — and maybe you don’t have as much money as Donald Trump, but you’ve seen in the papers recently that Ivana Trump couldn’t break her prenup, and now Marla Maples is apparently trying to break hers, and what everyone has said just universally, especially in New York, is that prenups really hold up if — but for the two factors that Steven was mentioning. So I think that if you have a prenup that was properly negotiated, properly signed, it’s going to hold up. Thanks so much for calling.
ESSENTIAL ELEMENTS OF MEDIATION
MS. GRASSO: Welcome back to Legal Cafe. I’m June Grasso. Our topic this hour, divorce mediation, and the big question is why bother? Is it really worth it to try and work things out without a judge? Before we answer that question, let’s take a minute to define some of the essential elements of mediation. The chief concept is authority. A mediator has no legal authority to make decisions about the divorce. It’s up to the parties themselves to reach an agreement, with the mediator’s help, of course. An arbitrator does have legal authority to make decisions, and, in some cases, an arbitrator’s decision is legally binding, which means that many times an arbitration hearing closely resembles a regular court hearing. That’s what the difference is between mediation and arbitration. Do you ever have arbitration in a divorce, though, Steven?
MR. ABEL: Occasionally, and we think it’s going to become more popular, in fact.
MS. GRASSO: Really?
MR. ABEL: Yes. We’re starting family arbitration council in the very near future, because we think there are a lot of people who go through mediation and they resolve 90 percent or 99 percent of all the things they’ve got to work out, and there’s just one or two things that are kind of — you can’t quite get an agreement. They’re too emotionally charged.
MS. GRASSO: And you don’t want to go to a judge at that point —
MR. ABEL: And the expense of going to court is enormous, the delay is enormous. In Manhattan to get a trial date takes a good long time. It’s also true in other counties. I don’t want to pick on Manhattan — in particular, but Manhattan is the hardest in New York state, anyway. It may depend a little bit where you are exactly in the country how long it takes to get a date in court. Arbitrators, though, never take a long time. So what we’re trying to set up is a family arbitration council so that those things, issues that are holding up a mediation or for a couple who just doesn’t want to wait for the whole court system but wants a third-party expert to make decisions — not mediation, but a third-party expert to really make the decisions for them, we think that this is going to start to increase in use.
MS. GRASSO: All right. Some more options.
MR. ABEL: Yes.
WHAT IF ONE SIDE IS UNWILLING TO PARTICIPATE IN MEDIATION?
MS. GRASSO: Let’s go to the phones. Betsy from North Carolina. Good morning, Betsy. You’re on Legal Cafe.
Q: Hello. My question’s for Steven. I’ve got a question — I’m calling from North Carolina, and my question is this: If you’ve got a willing party that’s looking at mediation as a solution and you’re up against an unwilling party that is unable to accept that mediation is a good solution or good alternative, is there any way to push the unwilling party to move ahead?
MR. ABEL: That’s a great question, because, indeed, it’s a totally voluntary process. The only way it works is because both parties come in.
Now, what I invite people to do as hard as I can is get that other party to call me once. If you can at least get the other side to call once, most of the time whatever it is that’s bothering them about mediation can be answered. If you could try to tease out of them very directly, “Why is it that you don’t want to mediate? Why would you really rather go to court?” you have a chance.
There is in some states, and I don’t believe North Carolina is one of them, in some states, there is a mandatory form of mediation. California, for example, requires that all custody cases at least attempt mediation. Florida the same way. You must at least start. And what we find in those states is that although mandatory mediation doesn’t work for everybody, because the notion is almost itself contrary to the whole spirit of mediation, a lot of people, once they meet once with a mediator, they stick with it, and they go past just the custody mediation and they go into divorce.
So a lot of times it’s just if you can get that person to just make the first phone call, most mediators will then be able to answer the questions that’s troubling them why they don’t want to start.
MS. GRASSO: And if mediation doesn’t work — you always have the option of going to court.
MR. ABEL: The court is always there, absolutely. We have no — the only loss you have in going to mediation, in theory, is it costs you some money to start the mediation.
There are innumerable studies — I mean, people are constantly studying everything —
MS. GRASSO: Absolutely.
MR. ABEL: — but, you know, you can kind of get lost in the theory, but repeated, repeated studies show that people who did not reach an agreement in mediation were very happy that they started, because at least it got them talking a little bit.
MS. GRASSO: All right. Thanks so much for your call.
HOW LONG DOES MEDIATION TAKE?
MS. GRASSO: How long does mediation generally take?
MR. ABEL: Typical divorce mediations run anywhere from about, oh, six hours of mediation time to about 15. I try to work with a couple once a week. For a lot of people, that doesn’t work for them, so it’s every other week. Some people are in a great rush. If I can, I’ll meet them twice a week.
MS. GRASSO: And how long are the sessions themselves?
MR. ABEL: Sessions — I work in two-hour sessions most of the time. Some mediators really prefer one hour, some people try to model it more closely to the couple. I just have noticed at the end of two hours, we’re all exhausted —
MS. GRASSO: And ready to go.
MR. ABEL: — and ready to go. (Laughter.)
MEDIATION AND CHILD SUPPORT AGREEMENTS
MS. GRASSO: Our next caller is Shelley from California. Hi, Shelley. Do you have a question for us?
Q: Yes, I do. My boyfriend was divorced through a stipulation on the agreement three years ago. He has a daughter who’s 16. There was never any arrangements made through mediation or any other way about child support agreements or any of those kinds of issues, and I wondered, is there a statute of limitations and is it too late now?
MS. GRASSO: Well, that — she’s still 16.
MR. ABEL: Yeah. The child support is required to be paid regardless of whether or not there’s an agreement, so her — I’m assuming that — let me just straighten this out. Where’s she living?
Q: In California in Alameda.
MR. ABEL: Okay —
MS. GRASSO: With who, though? With whom, Shelley?
Q: Oh, I’m sorry. With her mother.
MR. ABEL: With her mother. Now, if her mother is not asking for child support, nobody’s going to come around and say that your husband or boyfriend has to pay. If she doesn’t come asking for it, that’s okay, but any day she chooses to come, child support will start from the day she asked for it. There is not in New York, and I doubt it very much if there’s any rule in California that ever lets you go backward —
Q: Mm-hmm (acknowledgment).
MR. ABEL: — but you can always go forward.
MS. GRASSO: Is it until 18, or nowadays — I mean, some agreements, when you do an agreement, provide until 21 or until college is through, but as far as the law is concerned, is it until the age of 18?
MR. ABEL: Well, in New York state, it’s until age 21, but this is a national program, so let me quickly say New York is the exception.
MS. GRASSO: Okay.
MR. ABEL: In almost every other state — and I don’t want to be absolute, because I haven’t studied it — but almost every other state, it’s age 18. There are occasional exceptions, as I understand it, outside New York for college support if a child’s in college past 18, but you can’t make a blanket national rule on this. There is no blanket national rule. It’s — each state adopts its own — in New York, I say it’s 21. In California, I’m quite sure it’s 18.
MS. GRASSO: Well, we’re going to be doing a show on child custody in a week, but tell me, is that your biggest issue in mediation? Is it the child custody or child support?
MR. ABEL: No.
MS. GRASSO: No?
MR. ABEL: Sorry.
MS. GRASSO: Do you mean it’s money?
MR. ABEL: No. No. The biggest — the toughest issue that every mediator deals with, invariably, is what the emotional block is in dealing with the money issues, because invariably people can handle the money issues. If you want to isolate it a little bit for sure, maintenance, which is the new word for alimony —
MS. GRASSO: That’s sad, Steven. I would think it would be fighting over the children.
MR. ABEL: No, no —
MS. GRASSO: No, it’s money.
MR. ABEL: Well, listen, the inside joke among most mediators is that the biggest problem for most couples is deciding which one of them’s going to take the children. Neither one is that enamored with the notion of being a single parent.
THE DIFFERENT STYLES OF MEDIATION
MS. GRASSO: Our next caller is Duke from New York. Duke, I understand you are a mediator. Hi, Duke, are you there? Are you a mediator?
Q: Well, actually, I work with the mediation center. I’m a divorce mediator and a divorce mediator trainer.
MS. GRASSO: Okay.
Q: One of the things that I thought might be important for the people listening is to recognize that there are different styles of mediation — like your guest, he works from more of an expert-based mediator position — where he has a lot of information regarding tax consequences — he has a lot of that information at his fingertips.
MS. GRASSO: Right, because he was a divorce lawyer previously, and what other kinds of mediators are there?
Q: Exactly. There may be process-oriented mediators, and what they do is they assist couples to work with a checklist, so when they discover questions that need to be answered, like tax questions, they may send them to a tax attorney to find out answers and come back to the process — or if they have real-estate questions, they may send them to realtors, to go to the experts and then find answers and come back to the process.
MS. GRASSO: Right. Now, Steve is shaking his head yes, but my question to Steve is, then, does that become more expensive, because then you’re going to experts along the way?
Q: Right. Well, often that type of information can be gained without a paid service. You may be able to go to banks and talk to realtors directly.
MS. GRASSO: Mm-hmm (acknowledgment).
Q: What I find is helpful about that process, and that’s part of what we teach at our center, is that couples are more intimately involved in the process, and they know enough information to make an informed decision, and that’s a big piece of what the process is about, and we use often the financial stuff as a dry run for people to get good at becoming experts themselves — because when you get to the tough questions like children, they can make the decisions themselves.
MS. GRASSO: All right. Thanks so much, Duke, for calling. And I want to get Steven’s input on that, that the differences between using someone like yourself, who has the knowledge there, and using someone who’s going to send you to different places —
MR. ABEL: Well, I really agree with Duke when it comes to the notion of how do you train mediators to do the work. Nobody knows everything.
MS. GRASSO: Right.
MR. ABEL: I don’t know everything, either. I’ve got a nice expert knowledge base, but I don’t know everything. There are times when the couple must be sent out for other advice.
So it’s critical that you be willing to do that as mediator — say, “I don’t know the answer to that question, but I’ll find out for you.” There’s nothing wrong with that. I don’t criticize what he’s saying one bit.
MS. GRASSO: But, you know, Steven, if I were seeking mediation in divorce, I think because of time constraints I would want someone who had as much — you know, as much to do with finances and legal, who could — who is a lawyer, who could draw up the contracts and stuff, because I don’t think I would have the time or the inclination to go to other people — I mean, it’s hard enough to work out the divorce, and to be going to other people along the way.
If you have the time, it sounds like it’s a great idea, because you do it yourself, but if you don’t have the time, you want one big package.
MR. ABEL: The big trick which is unstated here is whether or not I know the answer to your problem, the real question as a mediator is can I do two things — can I educate you quick about what it is you need to know, because I know the subject matter, and still leave it up to you? Because that’s the mediator’s job. It’s not my job as an expert to take over, and I try very hard not to take over.
Now, some couples sort of want you to. They say, “Look, you know about this. What would you do?”
MS. GRASSO: Right.
MR. ABEL: And I believe in giving people answers. I’ll tell them what I would do, and I’ll tell them exactly that way. “Now, look, if it was me, this is what I would do, but you’re not me.”
MS. GRASSO: Right.
MR. ABEL: And that’s the hard part, is to always have that restraint of not being so directive, not telling them what to do, but instead teaching them, and we do a lot of teaching.
MS. GRASSO: All right, Duke, thanks so much for teaching us about different kinds of processes and mediation.
TIPS FOR SUCCESSFUL DIVORCE MEDIATION
MS. GRASSO: We’re almost out of time for this hour. Before we wrap things up, I want to take a minute to go over some of the legal points we’ve discussed. We’ll call this Steven Abel’s House Blend for a Calm Divorce.
First, find a mediator who specializes in divorce. A member of the Academy of Family Mediators is a good place to start. You should spend some time learning about divorce — property division, custody and support if you have children. Finally, remember that winning is not the issue. Focus on creating a divorce agreement that works for you and your family.
A calm divorce —
MR. ABEL: Right.
MS. GRASSO: I had to smile for that, having gone through this myself. Now, we said — I asked you off camera. I said, “What else?” And you said, “Ignore the Greek chorus” —
MR. ABEL: Oh, yeah.
MS. GRASSO: So what is the Greek chorus?
MR. ABEL: The Greek chorus — as soon as you tell anybody you’re getting divorced, all of a sudden they’ve got a story for you. They’ve got something you’ve got to know, whether it’s their divorce, their cousin’s divorce, what do to, what not to do — it almost always is how to screw your spouse.
MS. GRASSO: (Laughs.) Right.
MR. ABEL: Whether you want to or not. Immediately, people are telling you how to screw your spouse, whether you have any interest in that or not. So the most important thing is don’t listen to all this stuff. It’s going to make you nuts, and it’s mostly wrong. I can’t believe the stories people bring in that they’ve been told, and they’re invariably a myth of some kind or other.
MS. GRASSO: What’s the worst myth you’ve heard? Can you tell?
MR. ABEL: There are myths out there that if you move out of the house, you’re going to lose your children. That’s a form of craziness in itself.
MS. GRASSO: Okay.
MR. ABEL: That’s one of the myths —
MS. GRASSO: They think abandonment —
MR. ABEL: Right. They think automatically you’re going to be charged with abandonment, you’re going to be put in jail, and you’ll never see your kids again.
MS. GRASSO: Well, when you go to a mediator or when you’re looking for a mediator, should it be someone that you both like, get along with?
MR. ABEL: Yes. Yes!
MS. GRASSO: So you have to interview a couple of mediators?
MR. ABEL: I think it’s advisable to interview a couple. If you’re happy and have a rapport with the first one, hey, that’s terrific, too. If you don’t have a rapport, go out and find somebody you have a little bit of a rapport with. This is hard work. This is not going to be easy. We talk about it’s friendly, it’s calm, but it’s also hard work to sit there with your ex-to-be, so you want somebody who you feel in some way gets along with you.
MS. GRASSO: Steven Abel, I can see why you’re a mediator. (Laughter.) You’ve been a great guest.
MR. ABEL: Great.
MS. GRASSO: Thanks so much for being here. It’s closing time for our Monday morning Legal Cafe.