Since 2019, New York courts have been requiring parties and their attorneys to use alternative dispute resolution (ADR) for all litigation matters, including divorce. Mediation is one type of ADR wherein a neutral facilitator tries to help parties find a solution to their dispute saving themselves and the judicial system time and money. It is particularly helpful in divorce cases where the parties are often very emotional and may need to continue to deal with each other even after the divorce is final. As long as certain rules are followed, the parties’ mediated agreement will be accepted and enforced by the court. This is an important principle validated by Judge Richard A. Dollinger of the New York Supreme Court, Monroe County in Irizarry v. Hayes.
In that case, the judge eloquently explained the need for and benefits of mediation and why courts should enforce mediated agreements absent a substantial flaw in the process. Recognizing “the nascent ADR-friendly landscape of New York,” and the repeated terms of being fair-handed which were contained in the agreement, the Court gave its stamp of approval and refused to set it aside.
The Irizarry case involved a divorced spouse who several years after signing a mediated separation and property settlement agreement sought to contest it in court. The agreement was mediated by a non-attorney mediator and a single attorney was hired to prepare the agreement and divorce documents on behalf of both husband and wife. The court held that this arrangement by itself did not lead to a conclusion that the agreement was a result of overreaching or unconscionable.
Importantly, the mediator in the case repeatedly encouraged the parties to retain their own attorneys to advise them regarding the terms and conditions of the agreement before signing it. Both parties also acknowledged in writing that they had an opportunity to seek the advice of independent legal counsel and other professionals, such as financial planners and tax advisors and that they were entering this agreement of their own free will. The document they signed also provided that the parties “fully understood that by this Agreement each is giving up substantial property rights which each would otherwise acquire during the marriage and in spite of that effect, each freely and voluntarily enters this agreement.”
In refusing to set the agreement aside, the judge reiterated that New York courts have adopted a statewide “presumptive mediation” stance in matrimonial cases, meaning that generally, mediated agreements should be upheld. He noted the benefits of mediation, including reducing the time and costs associated with divorce, encouraging parties to cooperate, and inspiring long-term compliance by the parties. He further stated that mediation is “a reasonable process for cost-conscious couple[s], seeking an alternative to lengthy and expensive litigation to end their marriage.” As a result, courts should enforce a mediated agreement in divorce unless there is “clear and convincing evidence of a substantial flaw in the process,” such as a complete failure of financial disclosure, evidence of coercive tactics by a spouse, a biased mediator, or a participant’s continual complaints during the process.
This judge’s recognition of the benefits of a non-litigation approach to divorce is an important signal to divorcing couples that the landscape has changed. As Judge Dollinger stated, “Mediation is not a wave of the future. It is … a bedrock of today’s dispute resolution process: A reasonable process … seeking an alternative to lengthy and expensive litigation to end … a marriage.”
While this case involved mediation, the same rationale applies to the collaborative divorce process. In many ways, collaborative divorce even improves on mediation because the parties are represented by their own attorneys throughout the process. In addition, they have a team of neutral financial and mental health experts available to assist in making well-informed decisions.
Both mediation and collaborative divorce provide a necessary and reasonable means to end a marriage. As the Divorce Sherpa, I help clients determine what is the best path for them. Contact me for a consultation today.