What is Mediation?
Mediation is a form of Alternate Dispute Resolution (ADR) and is a voluntary and confidential out-of-court process. The mediator acts as a neutral facilitator to help the couple reach an agreement on custody, parenting time, support, distribution of assets and debts and/or any other issues that need to be resolved. Mediation takes place in the mediator’s office and minimizes the time and cost to finalize a divorce.
In mediation, the parties informally exchange financial information. This avoids the need for costly “discovery” in a court setting. The mediator listens to each party’s position and provide options and alternatives for settlement to assist the parties in reaching a compromise. Although every case is different, most mediated cases are resolved in 3 to 5 sessions of two hours each.
Once the issues are resolved, the mediator drafts a Memorandum of Understanding (MOU) summarizing the agreement. Parties are strongly encouraged to have the MOU reviewed by independent attorneys before they sign it as the mediator cannot provide legal advice or represent either party in finalizing their divorce through the court.
After the Marital Settlement Agreement is finalized and signed, one party’s attorney will file a Complaint for Divorce and a court date can be scheduled to complete the divorce. In some counties, the court will accept written certifications instead of a court appearance, further decreasing the cost of the divorce.
*Mediation may not be appropriate for couples where there has been domestic violence.
What are the Benefits of Mediation?
Convenient. Meetings are scheduled by the parties and the mediator at mutually convenient times in the mediator’s office. There is no need to wait for the court to set a schedule and there is no pressure to comply with court deadlines.
Choice. The parties select a mediator of their choice who is trained to mediate family law cases. With the mediator’s assistance, they can then mutually decide on their settlement terms instead of allowing a judge to make that decision for them.
Voluntary. Participation in mediation is strictly voluntary and may be terminated at any time by either party. Each party has as much time as he or she may need to consider the issues and neither party is forced to accept a decision made by a third party, such as a judge or arbitrator. The agreement is not binding until it has been reviewed by each individual’s attorney and signed by both parties.
Confidential. Mediation discussions cannot be used in court if the mediation process breaks down. The mediator cannot be compelled to testify at a deposition or in court. What happens in mediation, stays in mediation.
Creative. The resolution of each issue is determined by the parties jointly with the assistance of the mediator. The mediator will suggest options to fit your needs and will help you to design solutions that are not limited by what a court can do.
Client-Centered . The focus of mediation is on finding the best outcome for you and your family. The schedule and length of meetings is determined by the parties with the assistance of the mediator. The clients “own” the process.
Cost Effective. You pay only for the time the mediator works on your case. No costs are incurred for having your attorney wait in the courthouse for a judge to hear your case. There are no costly depositions, conferences or hearings. The cost of the mediator is usually shared with your spouse and the total cost of the mediator and the two attorneys is far less than the cost of paying two attorneys to litigate.
Are there Disadvantages to Mediation?
Mediation is not recommended if there has been any domestic violence or if one party is overbearing or dominates the relationship. Although each party is strongly encouraged to seek legal counsel, the parties must be able to speak for themselves at the mediation table. An imbalance of power may result in an unfair agreement. Additionally, where one party has no information about the finances or suspects that assets are being hidden, mediation may be inadequate to address all the discovery issues.
Risa A. Kleiner is a trained professional mediator who has been accredited by the New Jersey Association of Professional Mediators and approved pursuant to Court Rule 1:40 as a qualfied economic mediator for the New Jersey Family courts. Risa has been mediating divorce and family matters since 1997. She is currently on the court roster for economic mediators in Mercer, Middlesex, Monmouth and Somerset Counties. She can also be retained privately in her Princeton office to mediate any family-related dispute.Mediation FAQ’sIs mediation different than arbitration? Yes. In arbitration, the arbitrator acts as a judge, hears testimony, reviews evidence and decides the issues. A mediator facilitates an agreement between the parties but does not make decisions for them.Who selects the mediator? You and your spouse select the mediator. You can ask your attorney for a recommendation or you can research mediators on the internet. NJAPM (NJ Assn of Professional Mediators) lists accredited mediators on their website, www.njapm.org.Should I file a Complaint for Divorce first? Parties who mediate their issues usually wait to file a Complaint until they have resolved all the issues and a Marital Settlement Agreement has been signed. That way, they don’t have to pay an attorney to go to court until everything is settled.Why do I need an attorney if I have a mediator? The mediator may also be a family law attorney. But as a mediator, he or she does not represent either party or offer legal advice. The mediator is a neutral, unbiased professional who helps facilitate an agreement by suggesting options and alternatives and guiding the parties to reach a reasonable settlement. The mediator cannot prepare or file court papers and cannot accompany you to court.Will there be full disclosure of my spouse’s assets and debts in mediation? Good faith and full disclosure are essentail in mediation. The mediator will oversee an open exchange of all critical documents necessary to allow you to reach decisions on all financial issues. However, if you feel that your spouse may be hiding assets, more formal discovery may be necessary through litigation.What other advantages are there to mediation? Mediation is faster than litigation and is often completed in less than 6 months while a litigated divorce may take more than one year and, in some counties, 2 or more years. You can schedule mediation sessions at your convenience. There is no lost time waiting for a judge to get to your case. All proceedings are confidential. The issues are resolved in an atmosphere of cooperation, saving emotional and financial resources. The process is much less stressful than litigation. \Are there disadvantages to mediation? Some people find it difficult to negotiate directly with their spouse, even with a mediator there to assist. A lack of trust between the parties may also make mediation difficult. If there has been a history of domestic violence or an unwillingness to share information, mediation is not advised.What is the cost of mediation? Costs vary depending on the mediator’s hourly rate and the number and length of the mediation sessions. However, a mediated divorce generally costs about one-third the cost of litigation, including the fees for the mediator and two consulting attorneys.Will the mediator draft a Marital Settlement Agreement? The mediator will draft a Memorandum of Understanding (MOU) which will form the basis for your Marital Settlement Agreement (MSA). You and your spouse will sign it with your attorneys once they have finalized it.
How does the divorce get finalized? One of the attorneys will draft and file a Complaint for Divorce after the Settlement Agreement is signed. A final court date will be set for the divorce. Some counties permit the divorce to be finalized without a court appearance. The attorneys can submit all the necessary papers and the court will return a filed Judgment of Divorce by mail.