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• Disclaimer

  So, Medina, Martinez & Castroll, LLC is a law firm and the people writing these posts are lawyers, but not your lawyers. We can't give you specific advice on your case unless you retain us (and we'd be happy to have you come into the office to discuss taking you on as a client). Otherwise, what is written here is purely for informational purposes for people interested in reading about divorce and family law in New Jersey and is not legal advice or counsel. Despite what is said here, the facts of your situation might warrant a different result and the laws of your state may differ widely from those of New Jersey.

Mediation and arbitration, whether in a divorce context or not, are often confused and for good reason. Both are similar in many ways. Like mediation, arbitration is a confidential, cost-effective and expeditious alternative to traditional divorce litigation and courts of law. It requires spouses to voluntarily submit their divorce matter to a neutral third party, an arbitrator, who ultimately renders a final ruling on settlement. As in mediation, parties, usually agree on the selection of an arbitrator, who may be a matrimonial lawyer or a former judge but, in any case, are experienced and familiar with the many nuances of matrimonial law. In situations where spouses cannot agree on an arbitrator, a judge, if it’s a lawsuit, will often select one from a list submitted by the parties. The cost of arbitration can be shared or divided by the parties. It is often recommended that this issue be resolved prior to arbitration. The similarities between mediation and arbitration, however, end there.

The role of an arbitrator is similar to that of a judge without the formalities and limitations of the courtroom. The arbitration process is usually less formal than a trial in that parties can agree on what rules of evidence are to apply. Unlike a mediator, an arbitrator has power to impose a settlement on the parties over their objections, if the parties so choose. This is why choosing an experienced arbitrator is so important. Generally, the parties agree to be bound by an arbitrator’s ruling prior to arbitration unless they agree that the decision will be non-binding. If the parties agree to be bound by an arbitrator’s ruling, then the arbitration is considered binding and is virtually non-appealable, except in instances where one party can prove that the arbitrator was biased, committed a gross error of law, or exceeded his or her authority. On the other hand, non-binding arbitration may be more appealable. However, if the end result of an appealed arbitration decision is the same as the initial decision or more favorable to the other spouse, then the court may order the party who appealed to pay the other’s legal fees.

Spouses pursuing arbitration are encouraged to retain legal representation because unlike mediation, an arbitrator is not particularly focused on facilitating dialogue between the parties in an effort to resolve their differences. Instead, an arbitrator hears testimony, accepts evidence and renders a decision based on his or her assessment of the parties’ positions. Attorneys are permitted to attend arbitration sessions, sometimes helping to conduct them as quasi-trials, and can ensure that their client’s best interests are advanced before an arbitrator. If binding, once an arbitrator renders a ruling, it is submitted to the court for filing by way of court order. Arbitration can also be used in conjunction with the courts. In some divorce cases, a disagreement over a particular issue can derail the process entirely. In such instances, an arbitrator may be called to help settle the matter in order to move the divorce case along.

For those interested in arbitration, the American Arbitration Association and National Arbitration Forum provide valuable information and other resources.

Posted by Jason Medina,
Medina, Martinez & Castroll, LLC

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

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

This recent post (reprinted below) at the Minnesota Divorce & Family Law weblog run by Gerald Williams illustrates a point that most family lawyers understand well. There needs to be a fundamental meeting of the minds for two parties to agree on a settlement. If not, settling those fundamental issues and getting the two divorcing parties to have that meeting of the minds is best left to a third-party, uh, “decider.” This doesn’t mean that you can’t go back to negotiation a settlement on those terms, but you won’t get over that hump until

Given that it’s the playoffs, let’s use baseball as an analogy - if you can’t agree that you’re going to play baseball, it doesn’t matter whether you use aluminum or wooden bats, who bats first, or who gets to wear the home colors.

Settlement Versus Trial

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.

Preparing for and proceeding with a family court trial is a long, expensive process. If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party’s terms.

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court. Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance. Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court. In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised. But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision. In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court. In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court. But it may be worth avoiding the risk of going to court and not getting the best possible result.

Posted by Victor J. Medina,
Medina, Martinez & Castroll, LLC

Many couples intent on getting a divorce decide to go through mediation before engaging attorneys to institute legal proceedings (regardless of whether they consult attorneys to review any settlement agreements).

What’s important to remember about private mediation (as compared to any mediation incident to divorce proceedings) is that it is a completely voluntary process. You can start it as soon as your ready and you can stop mediating at any point, if you decide that it’s not in your best interests to continue.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

I’ve often tried to explain that divorce is the dissolution of the family corporation. It’s a position that is unpopular because it’s perceived as lessening the value of the family.

However, as much as my business law consulting is about planning for the future, so should family law consulting be about planning for the future.

Here’s a recent blog post that illustrated my point about divorce being about dissolving the family business.

A Michigan court of appeals found that a motion to amend a divorce settlement agreement should be treated like a motion to reform a contract. Which generally means that motions based on the unilateral mistake of one party are not typically granted.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

The UPI recently ran a story that said that the end of summer is one of the most common times of the year to start divorce proceedings.

Included in the story was this:

The lawyers said the end of summer is rivaled only by the close of the Christmas season for amount of annual divorces, ABC News reported Tuesday.
…
“This is usually the deferral of a decision that’s been made months earlier,” said James Hennenhoefer, a family law attorney in Vista, Calif.

Our practice has experience similar surges in divorces. The common theme is that couples are waiting for the good times to be over before creating havoc in the home. Although James Hennenhoefer’s suggestion is about the end of summer, it’s typically true that divorces after the close of Christmas are also the deferral of decisions made in the past (usually before the start of the “holiday season”).

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

One of my fellow bloggers, NJDivorceBlog posted this update about a case decided on September 10, 2007 where the trial court resolved a dispute about a missing term from a “settlement on the record.”

Many spouses (usually the ones with the most to lose and with leverage in the marriage) will push for divorces to be resolved by a mediator and look to get those settlements agreed to without having the other spouse carefully consider the outcome, which can include having a written agreement reviewed by attorneys, or in this case, without reducing it to writing in a full-blown divorce agreement and relying on a “settlement on the record.”

Whether or not you choose to engage in litigation incident to your divorce, you’ve got to make sure that you have competent attorney representing your interests and reviewing any settlement. And, as is the case in many negotiations, get the agreement in writing.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

It never ceases to amaze me how many clients get their initial information on divorce law basics in New Jersey from family & friends, instead of from an attorney.

Here are some of the basics - see what differs from what your friends and family (well-intending, I’m sure) told you:

Residency Requirement

To obtain a divorce in New Jersey, one of the two parties must presently live in New Jersey and must have lived in New Jersey for at least one year prior to filing the complaint for divorce.

Grounds for Divorce

No-Fault Divorce -

Until recently, there was no simple “no-fault” divorce in New Jersey. Couples were required to live separated for 18 months before filing for a no-fault divorce. Recent legislation has changed that and now couples may file for a no-fault divorce after 6 months of living apart under the new Irreconcilable Differences.

Fault Divorce

In New Jersey, there are 6 ground for a “fault divorce.” They are Extreme Mental or Physical Cruelty, Adultery, Desertion, Addiction, Institutionalization (for Mental Illness), Imprisonment, and Deviant Sexual Conduct.

Coming up

The next few posts will deal with mediation, alimony, custody and some of the other important issues regarding matrimonial law in New Jersey.

Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC

It seems that every weblog starts with a post called “First Post” and I don’t want to jinx the success of this blog by deviating from the standard. Not to mention, this gives me a chance to test the blog. So, here’s “First Post” - this is going to be a great resource for family law, especially in New Jersey.