Mar
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Alternative Dispute Resolution Options for Divorce in New Jersey-Part III: Mediation
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics, Mediation & Collaboration in Family Law
Whenever I suggest mediation to my clients as an alternative to traditional divorce litigation, the suggestion is always met with the same response: “What is mediation?”
Well, divorce mediation is not a brand-new idea. It has been around for many years and has increasingly become the preferred alternative to the courts in settling divorce matters. It is important, therefore, for spouses contemplating divorce to become familiar with mediation, as well as other options for alternative dispute resolution.
Private divorce mediation is a voluntary and confidential, and is intended to be a non-adversarial process. It costs substantially less than litigation and affords parties the opportunity and flexibility to ultimately structure their own divorce settlement agreement, rather than permit the courts to impose a settlement on them. The first step in the process is the selection of a mediator, who may or may not be a matrimonial lawyer. Generally, parties agree on the selection of a mediator and often share the cost of mediation. Most mediators charge by the session and unlike attorneys, rarely require a retainer.
The role of the mediator is to serve as a neutral third party who assists in facilitating a dialogue between spouses aimed at helping them reach a resolution they find acceptable. This spirit of cooperation and sense of autonomy often results in the amicable dissolution of marriages and minimizes the conflicts and disputes that typically arise in traditional divorce litigation. The courts have also recognized the efficacy of mediation and have implemented mandatory mediation programs in certain divorce cases. These programs are often mandatory in divorce cases involving difficult child custody and visitation issues.
The duration of private mediation varies based on the complexity of the divorce matter and the exchange of information between the parties. Gathering and preparing all relevant documents and financial statements can be a daunting and tedious process. In recognition of this, mediators often recommend that parties, who have not already done so, retain private counsel to guide them through the mediation process. Generally, attorneys do not sit in on mediation sessions, but rather assist their client in preparing documents, drafting case summaries, providing legal advise on difficult issues and reviewing any agreement drafted by the mediator.
All decisions and stipulations reached by the parties are memorialized in a Memorandum of Understanding (MOU), which explains in detail how the parties reached the agreement. The MOU is not a contract and is not signed by the parties. The parties review the MOU for accuracy and bring it to their respective attorneys for review. If satisfactory, the terms of the MOU eventually form the basis of a Property Settlement Agreement (PSA), which is filed with the court. However, if at any time prior to the filing of the PSA a party is not satisfied with the mediation process or the MOU, he or she may walk away from the table and pursue traditional litigation or arbitration. A mediator, unlike binding arbitration, has no authority to impose a decision on the parties. In some cases, parties decide to mediate some issues and let the court determine the outcome on others.
Mediation is not for every case. It requires patience, understanding and a willingness to compromise with your soon to be ex-wife or husband. And though I have no statistical data on the success rate of mediation, I often read that couples that choose mediation are more likely to be satisfied with the process when compared to couples that pursue traditional divorce litigation. Ultimately, the decision is yours to make.
For those interested in mediation, the New Jersey Association of Professional Mediators and the Academy of Family Mediators provide useful information and resources on how to locate a mediator in your local area.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
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