Monday, July 14, 2008

Divorce Mediation and the Brinkley-Cook trial

I hate to sound like a broken record, but as a divorce mediator, it's hard to figure out why divorce mediation isn't the option everyone chooses in a divorce! Here's an informative article from about divorce mediation and the unfortunate fact that New York remains one of the worst places to get divorced.

The article is "New York State lags in using divorce mediation" reported and written by MICHAEL ROTHFELD and staff writer MELANIE LEFKOWITZ. July 14, 2008

Isn't there a better way?

The salacious and rage-fueled divorce trial of Christie Brinkley and Peter Cook may have made for good gossip, but experts say it is also a perfect example of everything divorce shouldn't be: expensive, public, bruising and adversarial.

Aside from the cameras and commentary, experts say the Brinkley-Cook trial, which ended last week after the parties settled out of court, is emblematic of divorce in New York, which lags behind dozens of states when it comes to offering alternatives to knock-down, drag-out courtroom battles.

From custody to mediation to financial issues, experts say the way New York State handles divorces makes the process far worse for both parties.

Andrew Schepard, a Hofstra University law professor who specializes in issues surrounding divorce, said New York's method of handling custody, for instance, is among the most adversarial in the country.

"It puts a premium on digging up dirt on the other party," Schepard said. "It puts a premium on each side saying, 'I am better than the other parent.' That is how parents 'win' custody. What they should be saying is, 'What are my children's needs during this divorce?'"

In the area of mediation, New York lags behind most states. Judges in the state do not have the power to order couples into mediation, which can reduce costs, create less divisive outcomes and help spouses maintain better relationships with their children and each other.

Programs not available to all

Courtroom alternatives, such as early-settlement panels and giving extra attention to high-conflict custody cases, are available only to couples who live in counties with pilot projects. Statewide, the state's Office of Alternative Dispute Resolution has an annual budget of $5 million in a court system that spends $2.4 billion a year.

But though change is not happening as quickly as many advocates would like, it is happening.

For the past two years, Nassau County has offered a program called "Children Come First," in which couples whose divorces are identified as acrimonious are evaluated and referred to services such as counseling and parent education. If they can't settle their differences with the increased oversight, a trial to resolve child custody disputes is held within 30 to 45 days.

Suffolk County recently began offering voluntary mediation, in which spouses are referred to approved mediators.

"It gives the parties the total control over the proceedings, because they can then decide and guide the whole proceeding through the neutral mediator," said Suffolk Administrative Judge H. Patrick Leis III. "Litigation is definitely a difficult way to do it, because afterwards one is a winner and one is a loser."

Judged a success

Nassau State Supreme Court Justice Robert Ross, supervising judge of the county's matrimonial center, said 147 couples have gone through the pilot model court since its inception in October 2006, and 80 percent of those cases settled within four months - compared with the one to three years that such contentious cases typically take. In her 2007 State of the Judiciary speech, New York State Chief Judge Judith Kaye called Nassau's program an "unqualified success."

Focusing on custody disputes at the outset, rather than settling them at the end of a yearslong process, keeps angry spouses from using children as weapons in their negotiations, Ross said. Once the custody issues are settled, he said, financial matters often fall quickly into place.

"And that's leading to settlements at an unbelievable rate," he said. "What you're doing for children now who don't have to be exposed to the acrimony of a divorce that's pending for two years, it's a blessing."

Robert Mangi, a divorce lawyer who chairs the Nassau County Bar Association's matrimonial committee and has represented litigants in the new model court, said that his clients appreciate separating issues involving the well-being of their children from appraisals of a house or a business.

Trying to avoid a 'circus'

"Ultimately what we're trying to do is to avoid the circus that you see in the Brinkley case," Mangi said. "If we can avoid a trial where all those issues have to come out, that's a good thing."

But despite some strides, many experts and divorce reform advocates find that change has been spotty, incremental and slow. In more than a dozen other states, couples are required to try mediation before seeing a judge. In New York, only a handful of counties offer court-sponsored mediation, and even then it is optional.

Leis said some lawyers mistrust mediation because of past encounters with untrained or unprofessional mediators, who are not licensed or regulated. To counter this, he said, Suffolk judges refer couples to a list of approved mediators who have been trained by the state Office of Court Administration.

"It's like trying to turn a battleship," he acknowledged.

Lisa Hicks Yackel, executive director of the New York State Dispute Resolution Association in Albany, said her group has been advocating unsuccessfully for five years for state legislation that would require couples with custody disputes just to hear about mediation. Some lawmakers are opposed because women's advocates fear wives would get steamrollered.

Schepard said he views the Brinkley divorce trial as a lost opportunity.

"It would have been absolutely wonderful for the judge to be able to order these people to mediation or parent education," he said. "Think of the message that would have sent to the public, instead of all the salacious details."

New alternatives

Some local alternatives offered by state courts for divorcing families:


A 2-year-old pilot program in Nassau County that speeds up custody decisions in highly contested cases. Couples meet with a parenting coordinator, who recommends services such as parenting education or anger management to encourage settlement. Spouses who can't settle have an expedited custody trial within 45 days. About 80 percent of the 147 families who came through the program have settled.


Recent Suffolk County initiative in which couples, when appropriate, are referred to a list of court-trained mediators to help them try to work out their differences outside the courtroom.


A Collaborative Family Law Center, in which divorcing couples and their lawyers work together to reach a settlement with as little conflict as possible, is under construction in Manhattan.

Blocking reform

Experts say divorce reform has failed in New York State because of these three factors:

Opposition from the National Organization for Women, which says its goal is to protect women who may be at a financial disadvantage in the divorce process.

Opposition from conservative religious groups such as the New York State Catholic Conference, the lobbying arm of the Catholic Church.

The lack of an organized constituency in favor of divorce reform.

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