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Mediation

Connecticut Divorce Mediation from Greenwich to Westport

What Is Divorce Mediation?

Mediation is a non-adversarial, “interest-based” method of alternative dispute resolution used in many types of civil cases, including divorce. Private mediation requires the agreement of both parties to participate. The parties meet with a neutral third party, the mediator, who guides discussions on issues in dispute, such as alimony, child custody, child support and division of property. (Mediation FAQs)

Mediation Can Simplify Your Connecticut Divorce

Westport CT Mediation LawyersWhen confronted with divorce, a number of issues and considerations immediately emerge when choosing the right process to resolve your marital disputes, reach agreement, and complete the legal process to finalize your “divorce.” Among the most common considerations that immediately come to mind are privacy, controlling the cost, and avoiding the incredible stress associated with the process.  In this context, Divorce Mediation has become a popular alternative to traditional litigation of divorce in Connecticut Family Court, but this popularity is rooted in very superficial characterizations of how mediation generally works when “the devil is always in the details.”  The truth is that every case is not a good candidate for Mediation, there are a great many nuances to consider before committing to Divorce Mediation, and there are a wide variety of Divorce Mediation models that can be employed by the professionals you engage.

A closer look at Divorce Mediation reveals important risk factors that should be considered.  There are also very distinct advantages/disadvantages when compared to traditional litigation or a hybrid litigation/mediation divorce process. [See Divorce Mediation FAQs]

Keep a few important things in mind before you commit

Every case is unique and some situations and people are better candidates for mediation than others.

Ultimately, it is not a choice of process or venue that controls tone and tenor in your dissolution, it is integrity, behavior, and the every-day actions of the parties involved that dictates the civility.

Trusting your spouse is a prerequisite to engaging and relying on the mediation process because access to information for your decision making is largely based on the honor system.

There are limited protections during a mediation process, especially if you start mediating before you start a divorce action. There is a risk that the status quo can change due to the self-serving actions of a party (or due to unforeseen circumstances) with respect to income, property and children (Automatic Orders in a formal divorce action mitigate this risk). Consider if one party does not want to get divorced or has other reasons to seek a delay. You may find yourself mediating for far longer than you have planned, and with little recourse to keep matters on a specific timeline.

If mediation is not successful, you need to start over, which may add to both the financial and emotional expense of a divorce.

Divorce Mediation is flexible and the process can be customized

A closer look at Divorce Mediation also reveals that a choice between mediation and litigation is not one versus the other.   In fact, combinations of mediation and litigation are, in fact, possible. Simply put, flexibility can be built into the Divorce Mediation. An experienced Divorce Attorney can design a hybrid process to offer the best of both worlds and greater protections for you than Mediation alone.

Mediation can certainly help keep you (and your private life) out of a courtroom. And, it is natural to be attracted to the idea of a non-adversarial process or to have a desire to find a process that purports to minimize conflict. And, there are a lot of benefits to mediated processes. But the reality is that there are many wildcards and extremely difficult and emotional decisions involved in every divorce and one can’t reasonably predict or control how their spouse will react as things progress (or even how they will themselves react) — even with the best of intentions.

Divorce is, at its core and by its nature, an adversarial process wherein each party has separate and distinct legal interests. So, it is not unreasonable to suggest that the idea of Divorce Mediation, where two parties settle their differences (only) with the help of a neutral facilitator, is a genuinely ambitious one. Nor is it unreasonable to suggest that those who are able to travel that path of Mediation successfully are more likely to be the exceptions and not the rule.

Common Divorce Mediation Formats and Uses

Divorce Mediation can be used more flexibly than most commonly understand. Here are some examples:

  • A fully mediated divorce (with or without “Review Counsel”) Note: Needle | Cuda always recommends involvement of an experienced legal family lawyer);
  • A partially mediated divorce – Where the process of mediation is used as a mechanism to break a deadlock or impasse (with one or more sticking points) within a traditional litigation in a divorce action (or other family law issue like a complicated Custody issue);
  • Represented Mediation – Where both parties seek settlement with a mediator but, either or both parties, are independently represented by counsel . In this process there is still a commitment to a private, non-adversarial, “interest-based” negotiation from beginning to end.

In short, there are a variety of ways to design and set-up hybrid processes under the general banner of Divorce Mediation with the goal of delivering the best of both worlds (both mediation and litigation). Understanding and educating yourself about the nuances and risk factors of Divorce Mediation is the first step to ensuring you start on the right path.

The experienced Family Lawyers at Needle | Cuda will help find an approach to Divorce Mediation and design a process for you that optimizes your chances for a successful outcome; maintains civility; maximized privacy concerns, creates a level playing field; ensures status quo protections are in place as a backstop; works to create cost efficiencies, and mitigates the many risk factors to the greatest extend possible.

Mediation helps to resolve sticking points and can save valuable time

Mediation can present a boiled-down process to give an idea of what the outcome might be at trial.   Thusly, mediation findings can create a path towards agreement rather than trial.  A successful Mediation process can crafted details that a judge might not include at trial.

Mediation sessions can be joint (both parties, their representatives, and the mediator) or individual sessions (one party, their representative, and the mediator) with “shuttle diplomacy” back and forth and may take place over the course of a morning, a day, a series of days or even over a number of weeks depending on what is agreed upon and necessary to work toward conclusion of the matter.

The mediator can also separate out the disputed issues in ways that make them easier to discuss dispassionately. You may be better able to articulate your side of the story just telling your perspective to the mediator, rather than in the artificial environment of court testimony. If you are successful in resolving your main areas of dispute, you begin work on crafting a marital settlement agreement. Sometimes that work will begin the same day as the mediation itself. If the judge then approves your settlement agreement, it becomes part of your divorce decree. If you do not reach a complete settlement, mediation may help to narrow outstanding issues and result in a more streamlined trial.

What Are The Advantages Of Mediation?

Mediation is a non-adversarial form of alternative dispute resolution. Parties that are amicable and close to resolving some (or all) of their divorce-related issues can benefit from mediation. Parties that are not on speaking terms or have a history of domestic violence are not good candidates for mediation. For parties where mediation is ideal, there are a few potential benefits.

Confidentiality

Unlike in a public trial, what is discussed in a mediation session is strictly confidential. Only the parties, counsel, agreed-upon experts, and the mediator will be present during mediation.

Time

While mediation typically requires several sessions to complete, it can save time over litigation. Mediation is usually immune from the costly delays and extended court dates associated with litigation. It is important to note that the time-saving benefits of mediation only apply if an agreement is reached. If it is not, the parties will likely need to pursue litigation to resolve the outstanding issues.

Cost

There can be significant cost savings if mediation is appropriate to the case and is successful. While the mediator does charge a fee, it can be substantially less than what it would cost to retain a lawyer to put on a full-blown trial.

Flexibility

Because mediation is designed to help the parties agree, they typically will have more flexibility surrounding how the process will work and what the agreement will entail, provided one is reached. The parties even have control over who the mediator will be.

Less Tension

Parties who select mediation are generally on better terms than those embroiled in litigation. Mediation does not seek to change that and is designed to decrease or eliminate rancor. This can be especially beneficial in cases where children are involved.

Disadvantages Of Mediation In Family Law Matters

As with any dispute resolution method, mediation has limitations and drawbacks. It is vital to talk with your attorney about what is best for your case.

It Is Not Suitable For All Parties

If the parties are not on good terms or far apart on the issues, mediation will likely not be successful. Because emotions and hurt feelings often swirl around divorce, many parties cannot benefit from mediation.

It May Not Work

Parties who enter mediation are usually hopeful that they will come to a resolution. But this is not always the case. If mediation is not successful, then the time and money spent on mediation will just be another cost added to the overall outlay connected to the divorce. Unlike litigation or arbitration, there is a distinct possibility that mediation will not resolve any issues.

Discovery May Be Limited

Discovery is the process of the parties disclosing key documents and evidence that can be used to help build their respective cases. In litigation, the parties can be compelled to provide that information by the judge. This is not the case in mediation and presents a risk that one side could be hiding income or assets from the other.

Potential For Bullying

The mediator’s sole purpose is to help the parties agree. They do not have any power to force a party to play fair or operate in good faith. A party with significant leverage over the other might use that advantage in mediation to bully the other side into an agreement.

Needle|Cuda leverages mediation to resolve specific family law issues within a divorce

Child custody and related issues;

Post-divorce financial issues, including alimony and child support;

Post-divorce child custody and parenting plan disputes;

Family Courts often require different forms of mediation 

Mediation has proven so useful that often the family court will require some version of the method to be attempted before allowing a case to go to trial, such as a Pretrial or a Special Masters conference. Unfortunately, there is less availability of Court-provided mediation since the COVID pandemic, and the Court often encourages private mediation instead. The Family Relations arm of the Court will try to help settle matters even in a litigated setting, but that is often limited to a conference call or series of phone calls. Having a lawyer on your side can help make those Family Relations interventions more productive and help ensure that your position is heard. Even when there were more Court-provided mediation services available, they were often shorter and less in depth than a private mediation. Thus, even if you do not elect to do private mediation, you may still be required to engage in some form of a court-sponsored mediation program — although that will likely not be as in-depth as a private mediation could be.

Having a knowledgeable divorce attorney at your side, like the ones on Needle | Cuda’s team, can provide you with confidence so you never get that sinking feeling of “What just happened?” when an important issue gets “resolved.” And you can avoid the after-the-fact realization that the end result is not what you thought it was.  It also ensures that  your voice is properly heard and represented in the result.

Most Divorce Mediations should be conducted under the umbrella of a formal divorce action and the protection of automatic court orders

It is important to understand that mediation generally falls outside the important protections offered by formally filed lawsuits and traditional divorce actions in Connecticut family court.

Why are protections offered by Automatic Orders important during Mediation?

Mediation leaves open the possibility for a party to self-help and to engage in an activity or activities to change the status quo during the mediation process with respect to property and/or children. A bad actor can do things like unilaterally borrow large sums of money, sell or give property away, take minor children out-of-state or out-of-the-country, change insurance beneficiary designations, let insurance coverages lapse, etc. Automatic Orders protect the status quo of finances (and children), but required a formal divorce action to be filed with the Connecticut Superior Court.

While these kind of bad faith actions are, of course, unethical and improper on the part of the parties, such abuses are risks that are inherent to, and downside risks of mediation. There may be ways to try to address some of these problems in the divorce itself, but it will almost always be better to avoid the problem in the first place. There are also some problems which later simply cannot be adequately remedied. Some parties use the prospect of mediation as a delay mechanism to put their “divorce planning” into effect, while their unsuspecting spouse thinks everything is being done amicably. One spouse may even bully the other into mediation, by acting like divorce “litigation” has a stigma to it, to imply that the spouse wanting the protection of the automatic orders is the unreasonable one.

Filing a formal Divorce Action before you start Mediation will trigger Automatic Orders and all of the inherent protections in Connecticut need to maintain the status quo.   Proceeding in this manner will allow you to freely move through your Mediation with the peace of mind that a safety net exists with the equitable protections that the courts provide.

Bullying is not a good sign in Mediation

If you are suspicious of your spouse’s motives, that’s a good indication you should be speaking with an attorney about what is happening and why, and planning a strategy accordingly. You do not have to forego having a divorce case pending and the protection of the automatic orders in order to mediate.

Unforeseen circumstances

An unforeseen circumstance can also bring complete chaos and completely change the context for family decision making where the idea of the status quo protections could seem quite attractive in comparison. In the post Covid-19 world, few people will think and act the same way. Random job loss, a tragic accident, terminal illness, property loss, extreme changes in market conditions that affect the value of a key asset, can dramatically change how one might view marriage dissolution.

The risks of traditional Divorce Mediation are not well known to most and contradict commonly held perceptions and ideas about mediation being a totally “safe zone.”

As amicable as you may want to make your divorce, you and your spouse have diverging interests in the outcome of the divorce. It often may be helpful (and less stressful) to have a representative who can negotiate with your spouse’s representative, so you can ensure your rights are zealously represented but you don’t have to be in the position of directly arguing with your spouse.

Contact Needle|Cuda to learn about all the creative ways Mediation can be used in a Marriage Dissolution and how to manage the associated risks.

To arrange a consultation, call us today at 203-557-9500 or contact our Westport office online.

 

[New Version] Frequently Asked Questions and Answers – Divorce Mediation

The mediator’s role to is to intervene between the two parties intending to divorce and help them reach an agreement through an amicable, “interest-based” process to help minimize litigation and/or involvement from the courts.

It is important to note that a mediator does not represent the interests of either party and therefore cannot provide advice. A mediator’s findings and/or recommendations are not legally binding to the parties and cannot be shared with a Court, unless they are embodied in an actual agreement. Mediators manage the process from start to finish until a resolution by the parties is reached or the process breaks down. A mediator’s duties and responsibilities depend on the type of dispute and may include:

  •  Schedule meetings and conferences with both parties.
  • Create and maintain an environment in which the parties can communicate, exchange ideas, and resolve their differences;
  • Facilitate a written agreement.
  • Analyze the parties’ claims.
  • Research laws and procedures that apply to the case.
  • Offer solutions that address all parties’ self-interests.
  • Evaluate the case in a fair, unbiased manner.
  • Assist the parties with the implementation of their agreement.
  • Refer clients to attorneys and other legal authorities if or when necessary.
  • When necessary, the mediator will refer the parties to third party experts for services like appraisals and valuations;
  • Ask relevant questions to obtain more information.
  • Help both parties understand each other’s point of view.

Always remember that a Mediator’s objective is settlement [vs. protection of the best interests of the parties (individual or collective)]. Given this singular objective, it is always the case that an individual’s best interests are extremely vulnerable to being compromised for the sake of expediency, convenience, simplicity, or some other inappropriate reason (e.g. an overzealous spouse who may railroad or guilt the other spouse into the process when it just doesn’t feel “right”).

And so, there is certainly plenty of good reason to stop, pause and fully consider how if Mediation can really work for you AND what level of representation and protections are appropriate have in place.

Yes, Needle | Cuda recommends as a Best Practice that a Divorce Action should be filed in Connecticut Superior Court’s Family Division as an important protection and backstop to every divorce mediation.

It is a commonly held misconception that if you mediate, you cannot or should not actually file a divorce case: litigation and mediation can and often should co-exist in the same case, particularly so that the Automatic Orders are in place as well as to facilitate being able to seek relief from the Court if the mediation process is unsuccessful. A divorce case can be filed in Court, mediation can proceed, and everything can still be as amicable as possible. There are just protections for both parties in place which can often aid in a fair negotiation process.

There are no state standards or licensing requirements in the State of Connecticut. Mediator education, training, experience and style vary. It is up to the people involved to decide what they need in a mediator and assess whether or not that the mediator they choose has the necessary skills, credentials, style, and approach to make them a good fit.

Individuals can practice as private mediators. The Connecticut Judicial Branch does not maintain lists of, or endorse any, private mediators. The Courts suggest that those thinking about hiring a private mediator inquire as follows:

  • What experience does the provider have?
  • What specialized education or training does the provider have?
  • Does the provider follow any rules of conduct or ethical standards?
  • What is the basis for fees charged?

Having the benefit of legal counsel can assist you in choosing an experienced mediator who is a good fit for your case.

No, it is not required for mediators to be a member a state bar or to have law degree.

While some mediators are practicing lawyers or retired judges (both who have a law degree), other mediators may have backgrounds in other professional areas like social work, business and accounting. Even if a mediator is a lawyer, the mediator is not your lawyer. Notwithstanding the particular background and expertise of your mediator, he/she plays a unique role of a neutral individual that does not represent or advocate for either party. Neutrality is paramount to the role of mediator.

Accordingly, mediators only provide and present information about state laws and local court procedures and do not discuss how these laws and procedures apply to or impact on your issues and circumstances. Mediators do not offer any legal advice. Mediators do not interpret statutes or laws and do not recommend any specific legal action (or any other action for that matter) that would benefit either party over the other.

No, of course not. A mediator may help facilitate reaching an agreement, but that is not a substitute for legal advice, which a mediator cannot offer because he/she does not represent either side (and they certainly do not represent both sides). In divorce and family mediation, there is always a vital role for consulting attorneys also known as “Review Counsel.” Each party to a divorce or marriage dissolution has a separate and independent legal interest.

It is therefore essential to seek advice from your own lawyer both before and/or during a mediation to ensure your separate interests are protected. Involving legal counsel sooner rather than later may be very helpful. Once you have already committed yourself to a flawed plan in mediation without a lawyer, it is harder to fix that problem than to avoid it in the first place with proper legal advice. (See Review Counsel and Represented Mediation)

With respect to Divorce Mediation, our Attorney’s often serve as Review Counsel for clients and review mediated agreements before those agreements are entered and finalized before the Connecticut Superior Court (Family Division).

Needle | Cuda advocates a Best Practice called “Represented Mediation” and represents clients in that process. Actively having the benefit of legal counsel going into and throughout the mediation process offers many benefits which may not be available with just using a lawyer as “Review Counsel.”

With respect to family law and a wide range of post-judgement matters, Needle | Cuda tactically uses mediation to resolve disputes as a time and cost-efficient alternative to litigation. Mediation is an appropriate venue for almost any kind of family dispute (e.g. alimony, custody, post-divorce financial issues, parenting plans, etc.) and can be a successful mechanism for keeping costs (both financial and emotional) in check.

Needle | Cuda does not serve or function as a (neutral) divorce mediator. We are advocates. Needle | Cuda is often involved in cases that are mediated (in part or in whole) as a Review Counsel or as an attorney in a Represented Mediations and thus has a vast amount of experience advising and advocating for our clients in mediation as it is frequently used as a method of dispute resolution.

Review Counsel, in the context of Divorce Mediation, generally refers to an attorney who is hired by an individual to review a fully-mediated divorce agreement and to advise that individual on risks, issues and concerns in that agreement related to their independent, separate legal interests before that agreement is finalized in Connecticut Superior Court and entered as a court order called a Decree of Dissolution of Marriage (also known as a Divorce Decree).

Retention of Review Counsel is generally considered to be a prudent decision. A final consultation with Review Counsel is also recommended by most Mediators — as a common-sense measure and also as a means of mitigating liability—since Mediators do not offer any legal advice and are by definition neutral in the Mediation process.

Connecticut Divorce Laws are complex and have many nuances depending on your unique circumstances. The components of a dissolution of marriage: Alimony, Child Support Custody (Physical and Legal), and Division of Property once finalized cannot be un-done, although there are ways to pursue modifications, subject to meeting certain thresholds.

In simple terms, it is the role of your Review Counsel to highlight the risks and issues inherent in Mediated Divorce Agreement based to make sure that you clearly understand any risks and all the important considerations of your situation with respect to Connecticut Law.

That said, because asking Review Counsel to review a divorce settlement agreement after it has been fully mediated is similar to asking a baker to unbake a cake, Needle | Cuda strongly recommends “Represented Mediation” as a Best Practice. Our many years of experience informs that when each party has the benefit of some material level of legal input throughout the process of a mediated divorce agreement, the outcomes tend to be more comprehensive; agreement obligations are more clearly defined and therefore are more easily enforced; and carry a higher probability of “sticking” as compared to mediations without experienced legal input throughout.

A “Represented Mediation” is a Divorce Mediation wherein one or both parties are independently represented, in the background, by family law attorneys through each stage of the Mediation process, including their review of your final mediated agreement as “Review Counsel.” The attorney(s) work hand-in-hand with each party and advise on all aspects of Connecticut Law involved in the dissolution of marriage and the negotiation of Alimony, Child Support, Custody. Parenting Plans, and Division of Property, etc.

This does not necessarily mean that the attorney(s) is involved in every meeting with the Mediator, althought that can happen. It simply means that meaningful legal advice is provided each step of the way to one degree or another.

In general, the answer is yes: what happens in mediation stays in mediation. One of the benefits of the process is the confidentiality attached to it, rather than creating a public record in an open courtroom. However, there are certain limited exceptions. For example, if there is an agreement reached in mediation, then the mediation proceedings may be available to some extent to enforce that agreement. Also, just because something is referred to in mediation does not then later place it off limits, if it would be otherwise discoverable, just because it was used in mediation. In order to best understand the benefits and limits of mediation confidentiality, you should consult legal counsel.

The mediator is an impartial third party who assists the parties in coming to a resolution concerning their divorce or family law matter. One prerequisite is that the parties must agree to mediation. The mediator, an individual who will conduct and guide the mediation, must also be agreed to by both sides. Mediation services will often have multiple choices for who will conduct the mediation. It is crucial to select a mediator with whom both parties feel comfortable and have no prior history with the matter or those involved. A mediator or mediation service that is reputable and respected within the industry should have a database of reviews or testimonials that will describe the experience that others had while using them.

Mediation differs from traditional litigation in several ways. Fundamentally, litigation is adversarial, while mediation is not. This means that in mediation, the parties work together along with the mediator to come to a resolution on the issues. The mediator does not make decisions and does not provide legal counsel. Unlike a judge, a mediator does not make rulings and cannot force the parties to do anything. The sole purpose of mediation is to resolve the issues jointly through an agreement.

Not all family law issues can be resolved through mediation. Cases that reach the litigation phase have failed to agree on litigated issues. Litigation involves going to trial in a courtroom where a judge will decide. In a trial, the parties can present evidence and argument. It is common for the parties to retain legal counsel to represent them throughout the litigation process.

While both are forms of alternative dispute resolution, arbitration shares more in common with litigation than mediation. Arbitration centers around the parties resolving their family law issues by using an arbitrator. The parties agree on this individual and on the rules of how the arbitration will be conducted. The arbitrator will listen to evidence and argument and render a binding decision.

Many couples look to mediation to control the cost of resolving their family law dispute. The truth is that the cost of mediation must be looked at regarding the total outlay of resolving all family law issues. Consider a case where some issues are resolved through mediation while the remaining ones are litigated. In that scenario, the total cost of handling all the issues within the legal matter may be equal to or near that of litigating them.

For couples who can work together to resolve all their family law issues through mediation, the cost can be significantly lower than other forms of dispute resolution. Still, it is important to note that multiple mediation sessions may be required for complex cases. It is recommended that parties retain their own private legal representation in those cases. These costs can quickly add up, making mediation more expensive than expected.

If an agreement is reached during mediation, it is not finalized until the court approves it. This means that either party can back out before its submission for approval. It is not unusual for a party to reach an agreement in mediation and then have their lawyer review it before it is made final. This service is known as a review counsel. Needle | Cuda recommends and provides this service to parties seeking legal counsel assurance that what they have agreed to during mediation is in their best interest.

Within the context of mediation, both review counsel and represented mediation seek to give a party insight into the legal ramifications and risks inherent to mediating a family law issue. While both functions seek to accomplish the same goal, one is more intensive than the other.

Review counsel is typically used after a mediation agreement has been reached. The attorney then reviews the document and advises the client on how the agreement will affect them legally and otherwise. If the agreement is unfavorable to the client, then the review counsel may suggest how to cure the bias. Most importantly, review counsel ensures that the client fully understands what has been agreed to and that the document says what the client thinks it does.

Represented mediation takes the role of review counsel a step further by being involved in the mediation process from start to finish. This can mean crafting a plan for the client before mediation and, in some cases, sitting in on mediation sessions. While counsel may not be present in every meeting, they will be integral in advising the client on each step of the mediation process, including reviewing the final settlement agreement.

Mediation is considered an alternative dispute resolution method for its potential time-saving benefits. While this is often true, the time savings are usually only felt for parties that can resolve all their issues through mediation. For parties engaged in partial mediation, the perceived time-saving benefits may be diminished as the remaining issues will need to be resolved through litigation or arbitration. Again, mediation is best used in cases where couples are not far apart on the issues and have expressed a willingness to work together to produce a mutually beneficial outcome. For all other cases, mediation may provide minimal time-saving benefits.

It is also important to remember that Mediation is NOT binding, so if an agreement is not reached, another process will need to start (e.g. Litigation or Binding Arbitration ).

 

Unless there are no assets or children involved, most divorces will take time to complete. Like all other forms of dispute resolution, mediation is not immune to that general rule. On average, expect to conduct multiple three-to-four-hour mediation sessions over several months. For more complex cases with significant assets or where children are involved, the timeframe can extend to up to 6 months. If the mediation process breaks down and a resolution cannot be reached, the remaining issues will need to be litigated and naturally will extend the total timeframe of the divorce.

Mediation is not an all-or-nothing proposition. Many couples elect to use mediation in conjunction with litigation or arbitration. A typical scenario is when divorcing parties are open to an agreement on child custody but cannot agree on the division of marital property. In that case, mediation can be used to resolve the custody piece while the remaining issues are handled through traditional litigation. If mediation is successful, the agreement reached will be incorporated into the divorce decree or settlement agreement.

In a divorce action that is being broadly litigated, where both parties have attorneys, the parties can turn to mediation with their attorneys to resolve a specific issue or sub-set of issues. Conversely, mediation can be used to resolve all divorce-related issues if the parties are amenable. At Needle | Cuda, we frequently use mediation and arbitration to resolve sticking points while reserving litigation for issues that cannot be worked out otherwise.

Yes, it is Best Practice to file a formal divorce action prior to the commencement of divorce mediation.

It is important to understand that mediation generally falls outside the important protections offered by formally filed lawsuits and traditional divorce actions in Connecticut family court.

Why are protections offered by Automatic Orders important during Mediation?

Mediation leaves open the possibility for a party to self-help and to engage in an activity or activities to change the status quo during the mediation process with respect to property and/or children. A bad actor can do things like unilaterally borrow large sums of money, sell or give property away, take minor children out-of-state or out-of-the-country, change insurance beneficiary designations, let insurance coverages lapse, etc. Automatic Orders protect the status quo of finances (and children), but required a formal divorce action to be filed with the Connecticut Superior Court.

While these kind of bad faith actions are, of course, unethical and improper on the part of the parties, such abuses are risks that are inherent to, and downside risks of mediation. There may be ways to try to address some of these problems in the divorce itself, but it will almost always be better to avoid the problem in the first place. There are also some problems which later simply cannot be adequately remedied. Some parties use the prospect of mediation as a delay mechanism to put their “divorce planning” into effect, while their unsuspecting spouse thinks everything is being done amicably. One spouse may even bully the other into mediation, by acting like divorce “litigation” has a stigma to it, to imply that the spouse wanting the protection of the automatic orders is the unreasonable one.

Filing a formal Divorce Action before you start Mediation will trigger Automatic Orders and all of the inherent protections in Connecticut need to maintain the status quo.   Proceeding in this manner will allow you to freely move through your Mediation with the peace of mind that a safety net exists with the equitable protections that the courts provide.

Needle | Cuda: Divorce and Family Law
Divorce Mediation
Divorce and Family Lawyer
Divorce Mediation
Needle | Cuda
Needle | Cuda: Divorce and Family Law,
830 Post Road East,Westport,Lower Fairfield County Connecticut-06880,
Telephone No.(203) 557-9500
Westport
Greenwich, Darien, New Canaan, Westport, Wilton, Southport, Ridgefield, and Fairfield, Connecticut -- including the surrounding towns and communities.
Description
Attorney Mark Randall serves as a neutral mediator in private divorce mediation proceedings. Schedule a consultation with Mark to learn about the process.
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