In the following interview with family law attorney Sarah Hechtman, we discuss the benefits of mediation and collaborative law in a variety of legal situations.
Please tell us about the mediation process and other dispute resolution methods in family law. What are their processes and principles?
We refer to alternative dispute resolution in family law as any process which keeps the parties away from court. In all my cases, I strive to resolve any potential litigation through negotiation before seeking judicial assistance. There are two formal alternatives to litigation: collaborative law and mediation.
A mediator is an impartial person who guides both parties to a solution that they can agree on. Mediation is used in many different legal contexts. However, it is particularly well-suited to family law because the disputes are often personal, whether they involve divorce, custody or prenuptial agreements.
The process of collaborative law involves both parties retaining their own attorneys, but pledging not to involve courts. This process involves the use of both lawyers and experts: financial professionals for budgeting or business evaluations, psychologists to serve as child development specialists, as well, as in some cases, divorce “coaches”, mental health professionals that help the parties navigate emotions which can prevent them reaching a resolution.
I believe that the most important principle of any alternative dispute settlement process is to focus on the underlying concerns and interests of parties, rather than their positions. The ADR process is built on empathy and compassion. It is important that, as practitioners we understand what matters most to each individual before we can attempt a resolution. The traditional role of the advocate lawyer is changed. Instead of advocating what the client wants, the attorney tries to discover the reasons for the client’s desire. The hope is that this will allow the lawyer to find creative solutions tailored to the individual family’s situation.
I believe that the most important principle of any alternative dispute settlement process is to focus on underlying concerns and interests rather than stated positions.
What are the most common family law issues that are addressed by mediation and ADR in terms of ADR?
Mediation is voluntary, and nothing is impossible to mediate as long as both parties are willing to try to settle their dispute in this manner. In my practice I mostly mediate for divorces. I’ve also mediated gamete donation contracts and parenting plans with unmarried parties. Prenuptial agreements, in my experience are good candidates for mediation because they are simple cases that can be resolved easily. The parties are in love with each other and want to make a contract to govern the finances of the couple.
What are the typical differences between family mediation and ADR?
Mediation and ADR provide much more creative options than courts. When deciding custody, a judge will sometimes order that holidays are shared between the parents on an even-odd basis, so one parent gets the even years and the other the odd ones. A court will also divide all school holidays in half.
Parents can consider their own unique circumstances when negotiating an agreement when the parties are in control of the process. You can make a contract to ensure that your children will continue to go to the mom’s family every year for Thanksgiving and to Florida to visit their grandparents at Christmas. The courts are more like King Solomon, they divide things in half.
Most cases that are brought to court in family law are settled prior to trial. No matter what the process is, it’s likely that the result will be a negotiated settlement. It’s how you arrive at that decision. It is clear that mediation agreements produce better results for families. Non-residential parents are more involved with their children than litigated cases.
What are the differences in costs and time required for each method?
A more cooperative approach will not only be more enjoyable, but also less costly.
What circumstances would it be inappropriate to use mediation or ADR in a family law case?
Mediation is definitely not the best option in some cases. Mediators are taught to screen out cases with a power imbalance, domestic violence history or other factors that are not suitable for mediation.
Mediation is voluntary and based on the full disclosure of financial information that everyone would have been entitled to as part of a legal proceeding. If a party lies or is unable to be trusted with full disclosure of assets then the case will not be appropriate for mediation.
How has the use of ADR and mediation changed over your years as a family lawyer?
ADR and mediation are becoming more common. In some jurisdictions mediation is the first step required in matrimonial proceedings. In New York City, I am a member of several court rosters that include mediators in family law cases. Many judges refer cases to mediation, even though it is not mandatory. They do this before they discuss the issues in court. Mediation and ADR have become increasingly popular for family law cases due to the court backlogs, which require a way to move cases and because court is a bad place to settle family disputes. Personal, I’m pleased to see that mediation is becoming more popular, due to its benefits for family relationships, and the compassion and empathy it promotes.
Sarah B. Hechtman, Counsel
Rower LLC
419 Park Avenue South 18FL, New York NY 10016
Tel: +1 646-437-7627
Sarah Hechtman is a family and matrimonial law attorney at Rower LLC. She has more than 15-years of experience. She has gained valuable litigation expertise as a prosecutor at the New York County District Attorney’s Office where she specialised on cases involving domestic abuse and sex crime, as well as as a civil right lawyer prosecuting cases for children. She is a trained mediator who mediates both matrimonial and civil cases in the court system. She is a member of New York Association of Collaborative Professionals and a certified parenting facilitator. She also teaches at Pace Law School where she teaches psychology and law.
Rower LLC, a New York-based law firm specializing in matrimonial law and family law. The firm’s commitment is to work with empathy and strength to understand their clients’ needs, as well as to meet them. Rower LLC offers a litigation practice that is highly skilled for those cases which require it. They also offer a practice equally as skilled to avoid litigation by using negotiation, mediation, and other forms alternative dispute resolution.