Oct
18
NEW SERIES: Alternative Dispute Resolution Options for Divorce in New Jersey
Filed Under Alternative Roads in Family Law, Family Law Basics, Mediation & Collaboration in Family Law
If you ask most people what they think about divorce, it’s a safe bet the responses you get will not be positive. And if you ask most people to describe the typical divorce process, you will most likely get descriptions involving warring spouses, costly legal fees and overzealous attorneys battling it out before a judge in a court of law. The reality is that most divorce cases, especially in New Jersey are settled at some point and rarely end up going to trial.
Though divorce litigation can be expensive, there are cost-effective alternatives available to parties that often result in settlement as opposed to trial. The most common alternatives to trial involve Early Settlement Panels (ESP), mediation or arbitration.
In New Jersey, the courts mandate the use of ESPs to assist in the early settlement of disputed financial issues, which often results in a fair, equitable and expeditious resolution of divorce cases without the need for trial. ESPs are a form of settlement conference comprised of two attorneys (one male and one female) appointed by the court to arbitrate divorce cases on a volunteer basis. The parties and their attorneys present their respective cases to the Panel, who take notes and direct questions to the parties. The Panel then makes a recommendation of what they believe to be a fair divorce settlement. The parties can either accept or decline the Panel’s recommendation. If the recommendation is accepted, the parties can settle their divorce at that time. However, if the recommendation is declined, the case will be set for trial. It is important to note that ESPs do not hear matters or make recommendations involving custody or visitation.
There has been a growing trend favoring the use of divorce mediation as an alternative to costly litigation and courts of law. In mediation, parties voluntarily agree to resolve their differences before a mediator, who assists in facilitating a dialogue between the parties aimed at helping the parties reach a resolution they find acceptable. However, mediation is non-binding, so if the parties cannot agree on a resolution they can walk away from the table. A mediator has no authority to impose a decision on the parties.
Often times, mediation and arbitration are understandably mistaken as the same. Each, however, are entirely different ways of resolving issues. Like mediation, arbitration involves parties voluntarily presenting their cases before a neutral third party, who then renders a ruling on settlement. However, unlike mediation, an arbitrator has power to impose a settlement. Generally, both parties agree to be bound by an arbitrator’s ruling prior to arbitration. Once an arbitrator renders a ruling, it is submitted to the court for filing by way of court order. An arbitrator’s ruling is binding on both parties and virtually non-appealable
Each of these alternatives has its merits for resolving divorces without the need for trial. Your attorney should discuss these alternative dispute resolution options as you proceed along your divorce.
NEXT UP: More on Early Settlement Panels
Posted by Jason Medina -
Medina, Martinez & Castroll, LLC
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