Mediation: A Practical Solution for Families
A divorce, child custody case or other family law case does not always have to be a combative and stressful experience. Even when the issues are complex, your future is at stake and emotions are running high, the potential for cooperation and an amicable outcome is always worth the extra effort. Berkman Bottger Newman & Rodd Attorneys work hard to achieve positive results for their clients that avoid unnecessary conflict.
Berkman Bottger Newman & Rodd represents men and women on either side of the issues of divorce, child custody and other family law matters throughout the State of New York in the areas of:
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Divorce mediation could be a practical alternative for your case, and many of the Firm's attorneys are experienced and skilled mediators. Divorce mediation is a voluntary process where divorcing couples work together with a trained mediator to negotiate and resolve their differences in a non-adversarial forum.
For many divorcing couples, mediation has become a viable alternative to the financial and emotional costs of traditional adversarial legal representation. Sensibly used, mediation provides the opportunity to find fair and realistic solutions to the economic and practical issues facing the family and also helps to heal the psychological rift.
Mediation is based on the premise that the people getting divorced are in the best position to make decisions that will have long-term personal and financial consequences on their lives.
Mediation is well worth considering if some or all of these are true for you:
- You want a civilized and respectful resolution of the issues.
- You would like to keep open the possibility of friendship with your partner down the road.
- You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.
- You want to protect your children from the harm associated with litigated dispute-resolution between parents.
- You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.
- You value control and autonomous decision making and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a third party, for example, a judge.
- You recognize the restricted range of outcomes generally available in the public court system, and want a more creative and individualized range of choices available to you and your spouse or partner for resolving your issues.
- You understand that conflict resolution with integrity involves achieving not only your own goals but also finding a way to achieve the reasonable goals of the other person and the family.
Established in 1994, Berkman Bottger Newman & Rodd is a well-respected family law firm located in midtown Manhattan. Concentrating solely on all aspects of matrimonial and divorce law, the Firm offers a rare combination of expert trial advocacy, effective negotiation skills, collaborative law and mediation.
If you or a loved one is going through a divorce or child custody case in any New York City Court and you need the help of an experienced matrimonial lawyer, call Berkman Bottger Newman & Rodd, LLP today at 866-786-4779, or complete the contact form provided on this site to schedule a consultation.
Practice Areas and Legal Definitions
Collaborative Law Alternatives to Litigation:
The corner stone of Collaborative Law is a focus on solving the problem, not fighting the fight. Simply stated, it is treating the process as a way to "trouble shoot and problem solve" rather than to fight and win. Some people look upon the civil justice system as a place to resolve a dispute they have with another. Collaborative Law is what they're looking for.
While no two situations are alike, the emphasis in the approach is to find a way in which the lawyers can work with the parties that will achieve a satisfactory settlement in an efficient, cooperative manner. This might include "four-way" settlement conferences where the parties meet with their Collaborative Lawyers to work on a settlement. Basically, however, attorneys in a collaborative legal case are committed to finding ways to achieve settlement that will work best in the case. The philosophy of Collaborative Law is that as much effort should be exerted toward settlement as is traditionally spent in preparation for and conducting a trial.
What are the benefits of using the Collaborative Law process for my divorce, child custody or other family law case?
- The Collaborative Law process is generally less costly and time-consuming than litigation.
- You are a vital part of the settlement team.
- All parties are supported by their lawyers and yet they work cooperatively with the other parties and their lawyer(s) in resolving the issues.
- The process is much less fear and anxiety producing than utilizing Court proceedings or the threat of such proceedings.
- Everyone can focus on settlement.
- The possibility exists that the participants can create a climate that facilitates "win-win" settlements.
- The proceeding is much less time consuming. It can be finalized within a short time following the parties reaching agreement, rather than getting bogged down for many months waiting for a court date. You control the proceedings - your destiny is in your hands rather than in the hands of a third party (the courts).
Mediation:
Divorce mediation is a voluntary process where divorcing couples work together with a trained mediator to negotiate and resolve their differences in a non-adversarial forum.
For many divorcing couples, mediation has become a viable alternative to the financial costs and emotional toll of traditional adversarial legal representation. Sensibly used, mediation provides the opportunity to find fair and realistic solutions to the economic and practical issues facing the family and also helps to heal the psychological rift.
Mediation is based on the premise that the people getting divorced are in the best position to make decisions that will have long-term personal and financial consequences on their lives.
Litigation:
In some situations, divorcing couples are unable to resolve matters through mediation or collaborative law or through negotiations. Such matters must be litigated. Although litigation is the costliest and often the least efficient way of proceeding, it is sometimes the only option.
In most cases, a lawsuit is preceded by negotiations between the attorneys. Sometimes those negotiations lead to a settlement short of going to court. If a lawsuit is started, pleadings are exchanged and the parties and attorneys meet their assigned judge. The judge will first determine if the parties are agreed as to grounds for divorce. If not, an immediate trial on “grounds” is ordered and the party seeking the divorce must prove his or her right at a trial. Once divorce is inevitable, three processes begin: (1) discovery, (2) evaluations and (3) temporary support and custodial matters.
Discovery is the exchange, usually after formal written requests, of financial records of all types. It can also involve some investigatory work where one party suspects that the other is not “coming clean.” Discovery also usually includes depositions, which are oral examinations under oath of each party and sometimes of third party witnesses. In heavily litigated cases, discovery can be lengthy and costly.
Where there are real properties, businesses, professional practices or other tangible or intangible assets that are considered relevant to the marriage, professional evaluators are often retained, at the parties’ expense, to do the necessary appraisals or valuations. In the case of contested custody matters, forensic psychological experts may be retained, also at the parties’ expense, to evaluate the family situation with an eye to a court decision on custody, visitation and other parental matters. In contested custody cases, a law guardian may also be appointed to represent the interests of the children in the lawsuit.
At the beginning of a litigation there are usually issues relating to the support of one spouse and/or children during the lawsuit. Such expenses as insurance, medical care, child care, school expenses, and the like also have to be addressed. In addition, parenting time with children during the lawsuit must be arranged.
All of the above matters, as well as other matters such as abusive behavior, contested occupancy of the marital residences, travel arrangements, and the like, can sometimes be resolved by negotiation. But many times they involve motions. Motions are applications on papers made to the judge assigned to the case and resolved, after the filing of papers and oral argument, by decisions issued by the judge. Needless to say, such motions take much attorney’s time and can be very costly.
Once discovery and evaluations are completed, if the case is not settled, it is set down for trial. Trial may take place before the judge assigned to the case or before a Special Referee to whom all or some of the contested financial issues may be assigned. Depending on the complexity of the issues, trial can take days or even weeks to complete. After trial, many judges require post-trial briefs by the parties’ attorneys in which they argue why the facts proven at trial should lead to a decision in favor of their respective clients. An appeal to the Appellate Division and, in rare cases, a further appeal to the State’s highest court, the Court of Appeals, is also available.
In litigation, the skill, experience and effectiveness of the attorneys is of paramount importance. The attorneys representing you should possess clarity of understanding and the ability clearly to educate clients. They should have a thorough knowledge of the law and of procedure and evidence. They should have facility with numbers and the ability to unravel complex financial issues. And they should be able authoritatively and convincingly to present your case to the court. The attorneys at Berkman, Bottger, Newman & Rodd, LLP possess all of these skills and are all experienced and effective advocates. Their many years of practice in this field, and their individual talents have brought the firm and each of the attorneys a healthy measure of success and the respect of both the judiciary and professional peers.
Other Non-Litigation Options:
Uncontested Divorce
Many couples are able to resolve their differences without undue acrimony and without professional help. But the process of reducing their agreement to paper and the further step of obtaining a divorce based upon their agreement is more than they are able or willing to undertake. In such a case, the help of an attorney can be sufficient to achieve their goals. This can be an expeditious and cost-effective approach and Berkman, Bottger, Newman & Rodd, LLP can prepare and file all paperwork necessary to obtain an uncontested divorce.
Advanced Negotiations
Where the expectations or desires of the respective parties are too far apart to effect an easy resolution, and where neither formal mediation nor collaborative law are desired, separate retention of attorneys to engage in negotiations may be called for. Such negotiations need not lead to court, but the attorneys are retained with that possibility in mind.
Key to a successful negotiation is that the parties understand fully the financial and other perhaps unforeseen consequences of suggested settlement options. The attorneys at Berkman, Bottger, Newman & Rodd, LLP are knowledgeable in working with high value complex financial affairs and offer clear and common-sense advice to our clients.
If skillfully done, such negotiations can lead to highly satisfactory and constructive resolutions, thus enabling the respective parties to “get on with their lives” without serious damage to their relationship and with maximum mutual concern for the welfare of the children. Here, the skill and sensitivity of the attorneys are most important. Berkman, Bottger, Newman & Rodd, LLP’s attorneys are experienced in successfully conducting such negotiations and in helping clients through difficult divorces and on to a new and better life.
Mediation Frequently Asked Questions
The following information includes frequently asked family law questions. These questions and answers are general in nature and should not be used as specific legal advice for your case. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For specific questions about your case, call Berkman Bottger Newman & Rodd, LLP today at 866-786-4779, or complete the contact form provided on this site to schedule a consultation.
What is the role of a trained mediator?
Throughout the mediation process, the mediator remains a neutral party. This means that the mediator is not acting as advocate, judge, or jury. Rather, the mediator's purpose is to assist the parties in identifying and clarifying the issues that must be resolved. He or she will help to develop a constructive dialogue that examines each issue with a focus on the parties' needs, interests, and priorities.
Will I need an attorney?
Yes. At the beginning of the mediation process, each party is advised to hire independent counsel to advise and consult with throughout the mediation process. The number of hours each party's attorney spends as a consultant is usually significantly less than would have been spent during adversarial negotiations or court proceedings.
At the end of the mediation, if the parties have settled on the terms for a separation agreement, the attorney mediator drafts the agreement. Each party then has his or her attorney review the agreement.
If we cannot communicate with each other, how will we be able to communicate through the divorce mediation process?
The divorce mediator is specifically trained to help couples with communication problems.
By choosing mediation, do I give up any rights that I or my children may be entitled to?
Divorce mediation is an alternative to adversarial proceedings or negotiations. All issues that would normally be addressed in adversarial proceedings or negotiations(child and spousal support, parenting arrangements, division of marital assets, tax implications) are discussed by the parties. Neither party should need to relinquish any of his or her entitlements, but instead of litigating issues, you and your spouse privately work through your differences with the goal of reaching an agreement that will best serve your present and future needs.
Can I withdraw from mediation if I am unhappy with the results?
Yes. Divorce mediation is a voluntary process. This means that both you and your spouse must be willing participants. If you or your spouse are not happy with the progress of the mediation, either one of you can withdraw at any time.
How does mediation address power imbalances between spouses?
Not all couples are suited for divorce mediation. For a mediation to be successful, both parties must make their voices heard. In situations where there are serious power imbalances between spouses, divorce mediation may not be appropriate. At the initial session as well as during the course of the mediation, the trained mediator together with the parties will assess the suitability of the couple for mediation.
Also true is that the process itself can be an empowering one and that a spouse who at first may perceive himself or herself at a disadvantage actually develops or discovers strong bargaining skills.
Are there situations when divorce mediation is not recommended?
Yes. Divorce mediation is not appropriate for all couples. For example, divorce mediation is not recommended in situations involving domestic violence. It is also not appropriate when one spouse overpowers the other or refuses to participate honestly. In addition, if one spouse refuses to divulge all financial information or fails to cooperate with the mediator's guidelines, mediation is not appropriate.
What are the benefits of divorce mediation?
Through divorce mediation, you and your spouse privately work through your differences and make decisions about your present and future needs. Generally, this process facilitates communication, promotes cooperation, reduces tension, and makes the inevitable separation easier. Divorce mediation is also a cost-effective alternative to traditional divorce litigation.
How long does divorce mediation take?
Sessions usually last one to two hours. The number of sessions varies depending on the complexity of the issues and the needs of the parties. Successful mediations usually take from three to 10 sessions.
How much does it cost?
The parties are charged on an hourly basis.
Attorney Profiles
Barry Berkman
A founding partner of Berkman Bottger Newman & Rodd, LLP, Barry Berkman received his B.A. degree from Harvard College and his law degree from Stanford University. Specializing in matrimonial law and mediation, he has guided many of his clients to successful, highly satisfactory out-of-court resolutions through the collaborative law process or mediation. He has served on the American Bar Association Task Force on Standards of Practice for Divorce Mediation and has been a member of the Matrimonial Committee of the Association of the Bar of the City of New York. He has served on the Board of Directors of the Family and Divorce Mediation Counsel of Greater New York, and is a co-founder of the New York Collaborative Law Group. Mr. Berkman has taught matrimonial law as an adjunct professor at Benjamin N. Cardozo School of Law and Fordham Law School and teaches mediation at the Center for Mediation in Law. He has made numerous CLE presentations on behalf of the New York, Westchester and Nassau County Bar Associations, as well as the American Bar Association. These activities and his reputation for ethical standards and professional ability among his fellow lawyers have earned him the highest rating, AV® Preeminent™ Peer Review Rated SM by Martindale-Hubbell®. Similarly, Mr. Berkman has been selected by his peers for listing in The Best Lawyers in America 2010 edition and in New York Super Lawyers in 2009 and in 2010. Mr. Berkman recently spoke about collaborative law on National Public Radio’s “This American Life.”
Walter F. Bottger
Before forming Berkman Bottger Newman & Rodd, LLP, Walter F. Bottger practiced law with several large, nationally renowned law firms as a litigator. For the years of 1972 through 1977, he was an anti-corruption prosecutor with the New York State Special Prosecutor's Office. He now has more than 20 years' experience in matrimonial law, and has practiced in all trial and appellate courts in the New York Metropolitan Area. He has litigated and tried many cases in supreme and family courts. He has prepared and argued several appeals in both local Appellate Divisions and before the state’s highest court, the court of appeals. His reputation among other attorneys for ethical standards and professional ability has earned him the highest rating, AV® Preeminent™ Peer Review Rated SM by Martindale-Hubbell®, and he has been selected by his peers for listing in New York Super Lawyers in the 2010 edition.
Jacqueline Newman
Jacqueline Newman joined Berkman Bottger Newman & Rodd, LLP in 1998 and has been a partner since 2005. Ms. Newman’s practice consists of litigation, collaborative law and mediation. She specializes in complex high net worth matrimonial cases and negotiating prenuptial agreements. Ms. Newman has taught the Collaborative Family Law class for The NY Association of Collaborative Professionals and the Center for Mediation in Law, as well as the Introduction of Matrimonial Law for Collaborative Divorce Professionals for the New York State Unified Court System. At Fordham University School of Law, she taught Family Law Practice as an assistant professor to Barry Berkman. Ms. Newman has also appeared as a commentator on various television shows. Ms. Newman was recently honored with a listing in The Ten Leaders of Matrimonial & Divorce Law in New York City, Age 45 and Under. These activities and her reputation for ethical standards and professional ability among her fellow lawyers have earned her the highest rating, AV Preeminent Peer Review Rated by Martindale Hubbell.
Richard A. Abrams
Having devoted his practice to matrimonial law throughout his career, attorney Richard A. Abrams is of counsel to Berkman Bottger Newman & Rodd, LLP. As a litigator, he has tried dozens of matrimonial cases and has argued numerous appeals, both in the Appellate Division and in the New York Court of Appeals. His current practice focuses on mediation of matrimonial disputes. Among his fellow attorneys, Mr. Abrams' reputation for ethical standards and professional ability has earned him the highest rating, AV® Preeminent™ Peer Review Rated SM by Martindale-Hubbell®, and he is listed annually among the New York Metropolitan Area’s "Super Lawyers."
Elizabeth Fox
Attorney Elizabeth A. Fox has been with the firm of Berkman Bottger Newman & Rodd, LLP since 2006. She is Of Counsel with the firm.
Evan D. Schein
Evan D. Schein joined Berkman Bottger Newman & Rodd, LLP in 2010 after practicing at another well-known matrimonial firm since 2008. Mr. Schein's law career has been entirely devoted to the practice of family law and complex matrimonial cases. Mr. Schein has litigated matrimonial matters in both Supreme and Family court.
Courtney E. Lemli
Courtney E. Lemli has been an associate with Berkman Bottger Newman & Rodd, LLP since 2010. Prior to joining the firm, Ms. Lemli practiced corporate law at a leading international law firm.