Going through a divorce case is no doubt difficult. Apart from dealing with the emotional burden of the divorce itself, the couple will have to grapple with the divorce litigation process, which can be even more draining. This is where alternative dispute resolution processes come in.
In New Jersey divorce cases, family law firms often suggest divorce mediation as an alternative to divorce litigation. Choosing divorce mediation is part of a collaborative divorce process, where divorcing couples cooperate and work with each other amicably. The divorce mediation process in New Jersey is robust and well-developed, with many couples opting to choose divorce mediation. In this article, we will address some of the common questions about divorce mediation and help you understand it better.
What is Divorce Mediation?
Divorce mediation is a form of an alternative dispute resolution process. Divorcing spouses will attempt to reach agreements for different divorce matters with the guidance of a neutral third party. The third-party mediator can be a divorce mediator appointed by the divorcing spouses or any other party, as long as the individual is neutral and agreed upon. The neutral mediator will then assist the divorcing spouses in reaching agreements, by keeping them on track and preventing unnecessary emotional arguments.
Divorce mediation can be an essential part of the divorce process. It is often taken as a first step before going to court. These mediation sessions can occur as a court-ordered mediation process or a voluntary process.
There are several differences between divorce mediation and negotiation. In mediation, there is a third party to guide the parties, while negotiation often involves the parties themselves or with their attorneys. Another difference is the formality, as mediation is often part of a court process, while the negotiation is done of the parties' own accord.
Is Mediation Required in NJ?
Divorce mediation outside of the courts is generally not mandatory under New Jersey family law. In certain circumstances, however, the New Jersey court system may refer the parties involved to mandatory mediation.
In cases where parties have a disagreement on child custody or child support, the court may order couples to attend custody mediation to work out the specific issues.
The Early Settlement Program (ESP) is another mediation program used by the New Jersey courts. Judges refer couples to this mediation program after reviewing initial case pleadings and submissions. If a couple is referred, their attendance is mandatory. While the ESP is similarly used to help to divorce couples reach an agreement without going to trial, it is different from how typical divorce mediation works. The divorcing couple will go before a panel of experienced family law lawyers, who will recommend a settlement after hearing the arguments presented by the attorneys. The settlement recommendations can be agreed to or rejected by the couple.
The Program for Mediation of Economic Aspects of Family Law Cases is a separate mediation program different from the regular mediation program. New Jersey judges refer couples to this program if the couple is unable to resolve economic issues during the Early Settlement Program. The Economic Mediation Program aims to resolve the financial issues of a divorce proceeding, such as obtaining equitable distribution of marital assets.
How Much Does Divorce Mediation Cost in NJ?
If couples are referred to divorce mediation in New Jersey, they can choose an experienced mediator from a Certified Mediator List provided by the court. The hourly rate of a court-referred New Jersey divorce mediator ranges from $300.00 to $500.00 an hour. The mediation sessions can each last one to three hours. The cost is usually split equally by the parties.
Alternatively, couples can opt for a private mediator to oversee their private mediation session. The cost of a private New Jersey divorce mediator can range from $100.00 to $500.00 per hour. The cost depends on the background of the divorce mediators. Generally, a divorce mediator who is also a divorce lawyer or family law attorney will require higher prices, compared to a divorce mediator who is not an attorney but a certified mediator. Their experience in mediating private mediation sessions will also be a relevant factor in determining hourly rates.
Although the cost of divorce mediation may look high at first glance, couples choose mediation because the overall cost of mediation will generally be lower than traditional divorce litigation due to the shorter time required to conclude the process.
How Long Does a Mediated Divorce Take in NJ?
Examining family law cases, on average, a successful divorce mediation only takes less than ten hours, spread over one to three months, to wrap up. In comparison, a litigation process in New Jersey can take up a year, if not more. Of course, these numbers are only estimates.
The length of a mediation session largely depends on multiple factors. One factor is the complexity of issues brought up by the couple. For example, if the couple is involved in a heavily contesting child custody proceeding, one mediation session may not be sufficient to resolve the issue. Another factor is the skill of the mediator chosen. Each mediator will structure his or her own mediation session differently, depending on the couple's preference and the mediator's own experience. A skilled mediator will be able to guide couples through the mediation process smoothly and quickly.
As the divorcing couple, there are ways to keep their mediation sessions short and effective. Perhaps the most important way is by keeping their emotions in check. It is common for divorcing couples to resort to pointing fingers and lashing out, but it only serves to prolong and complicate matters. Divorce mediation in New Jersey is meant to be amicable and not adversarial.
What Do I Need to Prepare For Divorce Mediation?
Before embarking on divorce mediation in New Jersey, you and your divorcing partner should talk to different mediators and select the most suitable one. The mediator should be someone that the couple can work with openly and honestly. All mediators are non-judgemental, but some will connect with the couple better than the rest. Not all mediators will have a family law background, but experienced ones will be familiar with family law regardless.
Before attending each mediation session, it is good to outline specific concerns and objectives you want to achieve. Some questions that you can have in mind include:
- How much child support do I need/do I want to payout?
- How much parental visiting time will I get/will I allow?
- How will the properties be split?
- Who will get to keep the pet?
Basic personal documents should be brought to each session.
Comprehensive financial and legal documents should also be gathered. This includes anything related to your financial situation. Examples of relevant financial documents include:
- Income tax returns
- Details of bank accounts
- 401(k) statements
- Valuation of properties, such as houses and cars
- Housing loan or mortgage documents
- Credit card statements
- Insurance policies
- Valuation of stocks and other investment instruments
- Pensions and social benefits, if any
Apart from preparing these physical items, it is also extremely important to keep your emotions in check before beginning each session. Although going through a divorce is hard, you should try to be in a good mental state as best as you can. This is so that you are ready to cooperate and resolve the issue at hand, regardless of how you may feel at the moment.
What Happens in Divorce Mediation in NJ?
Before getting into the question of how divorce mediation work in New Jersey, it is important to emphasize that the mediator is an impartial third party who does not make decisions for either party. The mediator will only guide couples procedurally and keep their emotions in check. The aim of divorce mediation, in New Jersey and elsewhere, is to help couples reach an amicable agreement through making their own decisions.
The first mediation session will be the initial meeting by couples with the mediator. The mediator will help set the agenda and outline the issues that need to be agreed upon. Some details that will be noted include the background of the couple and their individual objectives. This assessment is done so the mediator can have an idea of how to proceed from there onwards.
This first session is a good time for couples to state their main concerns upfront. For couples with dependent children, concerns such as parenting time arrangements, child support, and other child custody issues should be outlined. The mediator can suggest and help prioritize issues. How each mediation session is structured exactly depends on the mediator's process and the agreement of the spouses.
In the subsequent sessions, the mediator will guide the couple on working out individual issues and gradually forming a divorce agreement. The couple will be encouraged to actively participate and attempt to reach an acceptable compromise. They will continue to work on the agreement for as long as they need, and are happy to attend mediation.
By the end of a New Jersey divorce mediation, the couple and they're soon to be ex will have reached final decisions on the issues and items on the agenda. The mediator will then create a Memorandum of Understanding (MoU) signed by the couple. Although not mandatory, the MoU will generally be reviewed by the couple's own attorneys to ensure that no legal mistakes have been made.
Finally, the attorneys will draft a finalized divorce agreement, also known as a Property Settlement Agreement. A filing professional, sometimes the attorney, will file the necessary paperwork to the New Jersey court. The NJ divorce process will wrap up when the court grants the divorce, sometimes weeks or months later.
The finalized document produced from mediated divorces will be legally binding on the divorcing spouses. Legally binding refers to the fact that both the divorcing spouses must not break any agreements within the document, or legal consequences may arise.
Since mediation ideally involves only the couple and the mediator, it is not necessary to look for a lawyer trained in family law. Couples should be able to participate in mediation without the need for lawyers. Nonetheless, if both parties agree, the mediation proceeding can go on with a lawyer or someone else present.
What If The Divorce Mediation Process Fails?
While divorce mediation is a good alternative offered as part of the New Jersey divorce process, it may not work for everybody and that is perfectly fine. At any point in the divorce mediation process, if one spouse or both decides that mediation is not working out, they can choose to end the mediation process. This is applicable even for court-ordered mediation sessions.
Ending the divorce mediation process often happens when one spouse or their soon-to-be ex is unable to agree on child custody, how many children support to pay out, and how should bank accounts be divided. If this occurs, the divorce process will move on to divorce litigation.
If the divorce process reaches the litigation stage, couples will have to approach family law firms and look for a respective divorce lawyer. The final agreement, such as the details of child support, will be made by a judge with little say from the couple. Therefore, it is advisable to work issues out during the New Jersey Divorce mediation process.
In New Jersey divorce litigation proceedings, what agreements have been tentatively reached and what issues could not be solved during the divorce mediation will not be taken into account by the court. Anything that you discuss during divorce mediation is confidential and cannot be revealed by the mediator.
One thing to note is that even if the litigation process has begun, the couple always has a choice to return to mediation once again.
Will Mediation Be The Right Choice For My Divorce Proceeding?
Lawyers with a family law background can advise you on whether mediation is the right choice for you. Whether mediation should be chosen partly depends on the grounds for divorce.
- No-fault divorce: Both parties agree that the marriage should end and have little ill-will towards each other. Neither of them is blaming the other for ending the marriage.
- Fault-based divorce: One party is choosing to end the marriage based on the actions of the other party. This may be due to infidelity, domestic violence or other reasons.
In no-fault divorce scenarios, parties are often happy to use mediation if there are some lingering issues to work out. Due to the no-fault nature of the divorce, neither party should be particularly antagonistic towards another. Mediation will likely resolve whatever remaining issues they have and contribute to quicker finalization of the divorce.
In fault-based divorce cases, however, parties may be reluctant to choose mediation as they are no longer able to cooperate or work with their counterparts at all. Some reasons may include:
- A spouse has domestic violence issues
- A spouse has child abuse accusations
- A spouse is entirely unwilling to cooperate
While mediators are trained to pacify aggressive or emotional parties, they may not always succeed. There will be little point in choosing mediation if each session will simply devolve into finger-pointing and lashing out, without any issues being resolved. In situations where one spouse is abusive or unstable, it is understandable that the other spouse will not be amenable to a collaborative discussion. Litigation will be the better choice in these scenarios.
Couples may worry that their divorce is too complex to be handled by mediation. This is generally not a concern, as experienced mediators will guide the couple to break down their issues into segments. Just because the mediation process may be longer does not mean that it will not work out.
Should I Try Mediation Before Going To Court?
Parties voluntarily undergo divorce mediation for the following reasons:
- Lower costs
- Quicker resolution
- Confidentiality of the process
- Parties get to take charge of the process
If the divorce is finalized through mediation, you and your separating spouse will generally be better off. The finalized agreement will likely be something both of you are happy with, which will benefit you emotionally and even financially. This is especially so if the couple has children, who will be able to avoid the emotional stress of experiencing their parents go through a court battle.
In contrast, litigation can be complicated and destructive. New Jersey law, especially family law, is not always easy to deal with. As we have mentioned many times, the emotional factor will be drummed up during a divorce proceeding in court. If your divorce is suitable for mediation, it is always a possible first step before anything else.
Speak to a Divorce Mediation Attorney Today!
Our firm, Villani Deluca, is extremely experienced in addressing all aspects of family law. We are able to give sound advice on your divorce proceedings or about mediation in New Jersey. Come to us and we will help you get through the divorce process the best we can.