Justice Cognetta has been a judge in the NY family courts. He was interviewed for Divorce Central by Terry Hillman, co-author of THE COMPLETE IDIOT'S GUIDE TO SURIVIVING DIVORCE.
Moderator: Welcome everyone to tonight's Expert Online show. Tonight our guest is Justice Carmen Cognetta. He will be discussing Mediation tonight. Welcome Justice Cognetta.
Judge Cognetta: Glad to be here Moderator: Can you tell us what is the value of using mediation to settle a divorce as opposed to going to court? Cognetta: Using mediation will save you time, money, stress and most of all, you will be in charge of what happens to your family rather than a third party. Moderator: What usually happens if people go to court? Cognetta: I have seen many families destroyed by going through the court system, both emotionally and financially the process is long and adverserial rather than a joint resolution process. Moderator: Can you discuss how mediation works? Cognetta: In mediation the two parties come together and with the assistance of the mediator. identify and reach resolutions to the problems connected with divorce. It is two people solving problems rather than two people being at war. The mediator does not decide the issues for the parties but rather facilitates the discussion and focuses the parties on what is really important to both and how to accomplish that Moderator: What kinds of divorcing couples are good candidates for the mediation process?
Cognetta: Any couples who wish to reach a rational, reasonable resolution to their problems through discussion, provided that the parties can negotiate equally. Couples with a history of Domestic Violence or excessive controll by one party may not be well suited for mediation. Moderator: What is the difference between using lawyers to settle a divorce and using a mediator to settle a divorce? Cognetta: Sometimes lawyers will automatically take an adversarial posture .immediately, and want to insure that their client "does better" or wins at any cost. Once lawyers are involved more people are involved with deciding what you should or shouldn't do rather than you deciding for yourself.
Moderator: I suppose using lawyers is also more expensive? Cognetta: Yes, Using lawyers can cost as much as ten times more than mediation. Moderator: If you use mediation, do you still need a lawyer?
Cognetta: Yes, after reaching a mediated agreement , you should have a lawyer review it to ensure that what you have agreed to is equitable also you will need lawyers in most states to finalize the divorce. Moderator: What are some of the techniques used by mediators to facilitate a fair settlement? Cognetta: Mediators will use various techniques depending on where the parties are at in terms of communicating with each other. Moderator: Can you elaborate? Cognetta: The mediator will attempt to get the parties to focus on what is most important to them such as their relationship with their children, and how to insure that their goals are reached they also help each party to see what is important to the other party and quite often their interest diverge into each other making a resolution easy. Moderator: Another trend you mention is that there be an equal sharing of time with each parent. Is there ever a time when equal sharing is not a good idea? Cognetta: I don't believe that it is a good idea when the primary motivation is money. If a parent honestly wants a close, loving relationship with the children, and they have the ability to really care for the children, then a more equal sharing is appropriate. However, when it is motivated by money or when the parent is not even planning on taking care of the children during their time, then it is not good for children. It is also not good when the parents are in a power struggle over having equal time. It is so important for BOTH parents to help the children feel the love of both of them and for each parent to help the children feel that they will promote the other parent's bond thus, being responsive to the child and respecting the child's need to be with the other parent. This is hard to do when you are furious with the other parent, but it is truly the best way to protect the children from the inevitable harm of divorce. Moderator: What issues would you tackle first? Cognetta: Whatever the parties feel are most important to them, that usually translates to the children, then finances. Moderator: Is it better to work out the big issues before dividing the china? Cognetta: Yes, if you work out the big issues that most people are worried about the smaller ones usually work themselves out very easily. Moderator: How long does a typical mediated divorce take to complete? Is there any trend in cases around the country about older children, ie, teenagers' having more say in custody and visitation? Cognetta: I limit sessions to two hours each. Anything longer is usually counterproductive. The average mediation will take 2-4 sessions or 6 to 8 hours. Moderator: What percentage of mediations that you have facilitated have successfully settled? Cognetta: I usually do an orientation with the parties before the mediation actually starts this usually will weed out those people who really don't want to mediate. So the percentage of successsful resolutioins is very high - 85-95%. Moderator: That's an impressive record! Do you ask the couple to do any preparation before the mediation begins? Cognetta: Yes, anybody can resolve their own problems if they just put aside some of their anger and ego and decide what is best for themselves and their children. Moderator: Just to repeat, do you ask the couple to do any preparation before the mediation begins? Cognetta: Yes, I ask them to fill out a financial form so we have a realistic picture of the family finances and I ask them to list their most important issues to discuss. Moderator: Let's take an example of a conflict that might arise. What if each person wants custody? How would you handle that situation? Cognetta: I would first try to get the parties to state what they really want, for instance, to continue to be a part of their childrens' lives. I would then work on how they could do that even if they did not have custody. Moderator: What works for people in this situation? Cognetta: I would have each party speak about their schedules and how that relates to having custody and being with their children. Usually it is clear where the children should live. If parties can't agree, a Judge would order the standard every other weekend, one day during the week, alternate holidays. Moderator: So, if a divorce is mediated, the couple can get something tailored to their individual needs? Cognetta: Yes, much more so than having a third party decide for you --especially one who knows little or nothing about you Moderator: What happens if a 10 year old child refuses to see one parent? Do children have advocates in the mediation process? Cognetta: No, parties usually come to mediation when a break-up is beginning. If a parent is just leaving the home and the child won't visit with them there is a deeper problem that needs to be addressed. Moderator: We are discussing mediation with Judge Cognetta, and you can ask your questions. Does anyone have questions about mediation or anything else relating to divorcing? Tired: How do you get a spouse to leave the dwelling willingly and without conflict? Cognetta: Through mediation. Rather than have a court order someone out or having someone put out by the police, through mediation you can discuss all the issues surrounding the person's leaving the home and reach a way to accomplish it. But it may not be a good idea to leave until other issues are worked out, or it may take longer to work them out. Tired, do you have custody issues involved here? Tired: No, just distribution of property, mostly an issue of who gets the house --we currently have joint ownership. She has stated she would leave, but is dragging out the weeks by not preparing and packing. I'm tired of the quiet evenings and non-verbal contact. I guess it could be worse and fighting could still be going on. Cognetta: I believe if you can get before a mediator , a plan can be made with definite time periods to terminate the relationship. Moderator: Justice Cognetta, would you like to add anything to what has already been said? Cognetta: No, I believe we have summed things up well. Thanks for having me, and goodnight.