More and more New Yorkers are learning that they can lower the cost and stress of getting divorced with mediation. In divorce mediation, a trained, neutral professional meets with both spouses (either in person or remotely) to help them work together on solutions to the issues in their divorce. The goal is to reach a settlement agreement and avoid the expense and time of a divorce trial.
You can use mediation anytime before or after you file for divorce, including when you have conflicts with your ex after your divorce is final.
In order to file for an uncontested divorce in New York, you and your spouse need to agree about important legal issues related to ending your marriage, such as:
If you're having trouble working out an agreement on any or all of these issues, a mediator can help. The same is true if you need assistance with a separation agreement as part of getting a legal separation in New York.
When mediation leads to a complete marital settlement agreement (sometimes called a "stipulation of settlement" in New York), you probably can complete your divorce without hiring a lawyer. Plus, choosing the path of mediation will give you more control over the outcome of your divorce and help minimize the type of conflicts that can arise during a traditional, contested divorce. (Learn more about the pros and cons to divorce mediation.)
You can still choose mediation if you haven't reached a complete settlement agreement before you file for divorce. In fact, the judge might order you to participate in mediation as a first step in the process (more on that below).
Divorce doesn't necessarily end disputes with your ex. For instance, one of you might want to increase the amount of child support or spousal maintenance, or one parent might want to move out of state with the kids. If you can't agree on changes to the provisions in your divorce judgment, mediation can help you avoid a court battle over the request.
As part of an original settlement agreement and order on custody issues, you and the other parent may include a provision that both of you will make a sincere effort to mediate any future disagreements before you go back to court and request a change in the arrangements.
Under a statewide "presumptive mediation" initiative that started in 2019, many—if not most—divorce cases (known as "matrimonial" cases in New York courts) will be referred to mediation early in the legal process. The same holds true for custody cases that aren't part of a divorce.
The rules on court-ordered mediation vary from county to county in New York. In general, after you've filed for divorce, court staff will review your paperwork to decide whether your case is eligible for presumptive mediation. For instance, in Westchester County, unless there's a serious power imbalance between the spouses or a history of child abuse or domestic violence in the marriage (more on that below), divorce cases will be referred to mediation when:
If your case is eligible for presumptive mediation, you may request an exemption. In some counties, however, you'll have to convince the judge that you have a good reason for opting out; otherwise, you'll have to attend at least one mediation session. In other counties, mediation is voluntary even after a court referral, and you can stop the process any time.
Different factors affect the cost of divorce mediation—most importantly whether you use court-connected mediation, a nonprofit mediation service, or a private mediator or mediation service.
If the court has referred your case to mediation, you'll usually be eligible for some free or lost-cost mediation services, either through your local Community Dispute Resolution Center (CDRC) or with a mediator from the court's roster. Here again, the rules (and prices) vary from county to county. Typically, the initial mediation session is free. Fees for additional sessions might be as high as $400 per hour (split between the spouses), but there's often a sliding scale based on your income. Even without an active divorce case in the courts, any qualifying New Yorker should be able to get mediation through a local CDRC.
The cost of private divorce mediation—whether with a mediation service or an individual mediator—ranges widely, depending on the mediator's qualifications and hourly rate, the complexity of your case, how long it takes to reach a settlement, and other details. Typically, the total bill is between $3,000 and $8,000 (again, usually split between the spouses).
That probably sounds like a lot, especially compared to options available through the courts. But depending on your circumstances and finances, private mediation could be the best option for you. For example:
It's also worth remembering that when mediation is successful—meaning that it leads to a comprehensive settlement—it's almost always far less expensive than going through a divorce trial. (Learn how contested issues affect the cost of divorce.)
Divorce mediation in New York is confidential. Typically, this means that the mediator may not reveal anything you or your spouse said in mediation or any documents or other written material you provided as part of the process. There are limited exceptions to the confidentiality rule, including:
Your mediator should provide you with a full explanation of the confidentiality rules before the mediation begins.
In New York, as elsewhere, the mediation process generally follows the same basic stages, including:
If you and your spouse agree about one or more issues, the mediator will usually prepare a document that reflects those agreements.
For mediation to work, both spouses must be able to negotiate freely, without feeling afraid or pressured to agree to something they don't want. That's why divorce mediation is generally not appropriate when there's ongoing domestic violence or emotional abuse in a marriage. It's also why many New York courts have a rule that cases will not be eligible for presumptive mediation if they involve domestic violence (or allegations along that line) or even a severe imbalance of power between the spouses. Mediation may also be inappropriate when one spouse is actively hiding income and assets from the other spouse.
If you decide to use mediation despite a history of abuse or bullying by your spouse, you might ask to have the mediator meet with you and your spouse separately.
If you and your spouse reached an agreement in mediation, the next step will be to file the agreement with the court, along with all of the other final paperwork. (As discussed above, some mediators may help with this step).
In New York, you generally won't have to attend a hearing to finalize your divorce when you've submitted a settlement agreement with the documents. A judge will review your settlement to ensure that it meets New York's legal requirements, including the following:
You'll receive notice from the court once the judge approves your agreement and signs the divorce judgment. In some counties, you'll then need to file the judgment with the court; elsewhere, the court will do this for you. If you filed the original divorce papers, you'll also need to have the judgment served on your spouse.
You're never required to agree to anything during divorce mediation, even if you've been ordered to participate in the process. In some New York counties, however, the judge may issue a second order of referral to a mediation program if the first mediation wasn't successful.
If you and your spouse don't reach a complete settlement agreement—either during mediation or later in the divorce process (typically through your lawyers), you'll have to go to trial and have a judge make a decision for you about any unresolved issues.