Divorce Mediation: New Jersey Style
What is Divorce Mediation in New Jersey?
Divorce mediation in New Jersey should be defined as a process by which divorce related issues are resolved by the parties themselves with the assistance of a third neutral person with specialized knowledge. Divorce mediation is an alternative dispute resolution mechanism that has gained popularity in New Jersey as well as other states across the country. Divorce mediation is an attractive alternative to most of the other forms of dispute resolution, especially in light of the “high stakes” involved and the emotions of the parties, which, when mismanaged, can result in years of protracted and costly litigation.
To place mediation in perspective and help define the term, we must first understand its relationship to other forms of dispute resolution. The first and most common form is that of negotiation, negotiations are too infrequently employed between two parties who are hostile and divorcing one another, Negotiations frequently occur between legal representatives of two divorcing parties.
If the parties are unable to resolve their issues through negotiation the next logical process is that of mediation where a third neutral party assists and facilitates the parties to reach their own agreement. In the event mediation is unsuccessful, the third basic type of dispute resolution process is known as arbitration where the parties select a third neutral person and agree to be bound by the arbitrator’s award or decision.
Lastly, the litigation process is the ultimate weapon in the arsenal of dispute resolution. Will Rogers once said “If your only tool ~s a hammer then all of your problems look like nails.” Mediation has proven to be an effective means to resolve issues, especially in the divorce arena. Divorce mediation has also been described as an imperfect process with an imperfect mediator, which generates imperfect results in an imperfect world.
Types Of Divorce Mediation
Voluntary Divorce Mediation
Most often one party or the other recommends mediation to resolve their divorce issues and the process is initiated voluntarily. A mediator is selected and the parties retain the mediator to assist them in resolving their issues. Occasionally, the parties have previously obtained legal counsel as to their rights and obligations. More often, the parties have not yet retained counsel when they enter voluntary divorce mediation. This is where the role of the divorce mediator becomes most important, The divorce mediator should have specialized knowledge of the issues involved in divorce litigation. The divorce mediator has the responsibility to facilitate an agreement, which, after being reviewed by the parties’ separate counsel, must be acceptable to the court as a reasonable and enforceable agreement. It is the practice in New Jersey for the mediator to prepare a Memorandum of Understanding at the conclusion of the mediation process and refer the parties to separate counsel who will review the Memorandum of Understanding with their clients. A final Settlement Agreement is drafted by counsel and submitted to the court when a final Judgment of Divorce is requested by one of the parties.
Court Ordered Mediation
The second type of divorce mediation is that of court ordered mediation. The family court judges have the authority to refer matters to mediation (R.1:40-~), There is mandatory mediation for issues involving custody and co–parenting. (R.l:4O-S) Even though custody mediation is not binding it 1s mandatory and ordered by the courts in an attempt to address those non-economic issues which frequently impede the resolution of the other issues. The New Jersey courts have trained mediators for purposes of this custody/co-parenting mediation. Parties are also free to engage the services of mental health professionals of their choice to mediate these issues. Occasionally’ the courts will order therapeutic mediation in cases where the relationships between parents and children are in need of repair.
Matrimonial Early Settlement Panels
Matrimonial Early Settlement Panels are a hybrid of mediation, but are closer to what in known as non-binding arbitration. A11 counties pursuant to R.5:5-5 have an Early Settlement Panel program. All cases prior to going to trial are referred to the program in an effort to reach settlement, Typically, two experienced family lawyers will listen to both parties’ positions for resolution and recommend a non-binding settlement, Frequently in the panels, the panelists employ some degree of mediation in an effort to reach resolution. However, because the panelists usually make ~ recommendation, the Early Settlement Panels are more akin to non-binding arbitration.
Why Mediate Divorce Issues?
Why not mediate? The litigation system is an adversary one. By definition both parties are in conflict with one another and present their one-sided viewpoint to the judge or jury. The attorney’s function is one of an advocate only for the client’s position and not toward the ultimate truth or fairness. The process requires a trial unless the parties are able to negotiate a resolution. Parties must endure the costly and expensive litigation trail before sometimes negotiating a settlement on the courthouse steps.
Alternatively, the mediation process focuses on a joint resolution. The desire and need of one of the parties is replaced with the concept of reconciliation of needs and an investment in a mutual resolution. The contrast in approaches is obvious. The divorce litigator, in preparation for trial, insists that the client remember every detail, every matter of fault, every piece of incriminating evidence, and every fact that may be used to impeach the credibility of the adversary. The mediator, on the other hand, prepares and conducts mediation only with the building blocks and facts necessary to construct a resolution. The mediator is unconcerned with the prior history and marital fault that led to the breakdown of the relationship. The mediator is more concerned with moving forward and forgetting the past.
The certainty and finality of mediated agreements render them more likely to be voluntarily complied with as opposed to a court order being enforced upon an unwilling participant. It is apparent, both logically and statistically, that persons who mediate their own agreements will comply with the agreement they, themselves, created. No one likes to be told what to do. No one likes to be told by a judge what to do when the court-imposed obligation favors their divorcing spouse. Court imposed judgments and orders lend themselves, by human nature, to non-compliance, which leads to further litigation. Mediated agreements do not.
About the Author
Mark Gruber, Esq. is certified by the Supreme Court of New Jersey as a Matrimonial Attorney, and a Fellow of the American Academy of Matrimonial Lawyers. Mark is senior managing partner at Gruber, Colabella & Liuzza in Newton, Hopatcong and Hamburg, and dedicates his practice to divorce litigation, mediation and arbitration. The New Jersey Institute for Continuing Legal Education on June 16th, 2008 presented Mark with its annual Alfred C. Clapp Award for Excellence in Continuing Legal Education. Mark has been a Master of the Worrell F. Mountain American Inn of Court and lectures frequently to other lawyers. He has been practicing Family Law since 1976 in New Jersey. Mark is the Host of Law Talk Today. TV, a local cable show. For more information about the author, to read other articles, or to link to other family related sources, go to gruberlaw.biz or email [email protected].
Acknowledgement
To encourage the study, improve the practice, elevate the standards and advance the cause of Matrimonial Law, to the end that the welfare of the family and society be preserved.
– American Academy of Matrimonial Lawyers