- April 11, 2023
File Under: Mediation
Mediation as an Alternative to a Litigated Divorce
Due to the sizeable number of vacancies in judicial seats, the Chief Justice of the Supreme Court of New Jersey has suspended most civil and divorce trials in two major jurisdictions—Vicinage 13 and 15—until further notice, and local divorce attorneys are concerned that more jurisdictions will soon follow. That has left some estranged New Jersey couples wondering if ending their marriage is still possible, and the answer is yes. While obtaining a courtroom divorce won’t be possible for the foreseeable future, there are other alternatives that can be pursued, such as divorce mediation.
What Is Divorce Mediation?
Divorce mediation is a process that limits the involvement of the court and which is overseen by an independent and impartial third party, who in some cases is a trained divorce lawyer. While there are other methods of alternate dispute resolution, mediation is the most prevalent and the one that is used in many New Jersey divorces every year. The job of the mediator is to guide the estranged couple through the process of achieving an amicable divorce, including reaching an agreement on such issues as:
- The division of marital assets and liabilities
- Custody and co-parenting plans
- Child and spousal support
The Goals of a Mediated Divorce
Mediation is often agreed to voluntarily but is sometimes a court-referred process. In either case, there are three core goals:
- Promote a positive, productive environment and avoid post-dissolution controversy
- Avoid the expenses and trauma that are usually associated with a contested divorce
- Create a mutually acceptable divorce agreement that is fair to both parties and legally sound
Divorce Mediation Is Not For Everyone
While many estranged couples find mediation to be a preferable alternative to a trial, family law attorneys do caution that mediation isn’t for everyone. Both spouses must be willing to negotiate and compromise to some degree and must be able to express themselves fully and without fear. Even when those criteria are met, there are some marriages, particularly those involving a significant amount of assets, that will need to go through either litigation or arbitration simply due to the complexities involved.
The Mediation Process
There are four core steps in the mediation process:
- Finding a mediator
- Preparation and general caucus
- Open statements and private caucuses
- Attempting to reach an acceptable agreement
For court-referred mediation, the court will often assign you a mediator, but in many cases, the couple will choose one with whom they are both comfortable. Once the mediator is selected or assigned, the next phase is preparation or what is known as the general caucus. There is no discovery. This is simply an opportunity to establish the ground rules and set dates.
Open statements occur next, and they can be provided by the individuals or, if applicable, their representatives. This is an opportunity to articulate perceptions and identify issues. Private caucuses are not necessary in many cases but are used by the mediator during negotiations where the spouses are emotional or there’s animosity.
Typically, just two or three of these sessions are required to reach an agreement or come to the conclusion that an agreement cannot be reached. If there’s no agreement, then the couple likely moves on to divorce arbitration. If there is an agreement, the mediator prepares a memorandum of understanding and submits it to each spouse’s attorney. Once reviewed by counsel, it is converted into a marital settlement agreement. When the agreement is signed by both spouses, the process becomes an uncontested divorce.
The Benefits of Mediation
Family lawyers recommend divorce mediation when at all possible because there are many benefits associated with it. Below is a closer look at some of the more notable advantages.
Success Far More Often Than Not
As mentioned earlier, many New Jersey divorces are achieved through mediation. One reason for this is that many couples agree on this approach. Another reason it is a preferred divorce method is just how successful it is. The success rate in New Jersey is about 90%, and that is representative of the country as a whole.
Ending a marriage can be expensive. The average cost of a litigated divorce in New Jersey can range from $15,000 to $75,000. Divorce mediation, on the other hand, is in most cases far less expensive, with an average cost of approximately $5,000.
If you are parents of young children and you have your divorce mediated, you as a couple can dictate how much your children are involved. You have the opportunity to shield them from much of what is going on, and you get to decide as a team on matters like custody, support and co-parenting. If your divorce is litigated, a judge will determine how your kids are involved and may make crucial family decisions for you.
Divorce can be traumatic. In fact, the mental health profession tends to agree that it is among the most stressful periods in a person’s life. Another reason family lawyers recommend mediation when possible is that it’s a low-stress process that avoids trauma. When mediation functions well, it is because two people are working together in a positive environment toward mutually beneficial goals.
Another reason divorce attorneys encourage their clients to consider mediation when feasible is the time required. You never need to wait on the court to begin it, and most mediations require just several meetings that last a couple of hours. For many divorces, the entire process is completed within two months, and you can now move on with your life. Other approaches take longer, and litigation is usually the worst by far. The closed courts situation aside, it can take upward of a year to get a court date, and many couples who go to trial don’t have their divorces finalized until 18 to 24 months after the original filing.
Privacy and Confidentiality
According to many divorce lawyers, one of the biggest issues with going to trial is that you sacrifice your privacy and confidentiality. While some financial documents can be submitted confidentially, many of the affidavits and evidence required in a divorce trial are public record. This may be information that you don’t want your family, employer, employees, customers and so forth to see. You can take measures to protect it, but that will cost more, and you won’t be able to keep everything out of the public eye.
Thorough and Practical Agreements
Divorce agreements have to be fair according to New Jersey law, but they don’t necessarily have to be practical. Mediation gives you the tools to reach an agreement that you and your ex-spouse can actually use. Shape your agreement in plain language based on your unique situation and the specific needs of your family. This is particularly important for parents of young children. You may be getting divorced, but you are going to maintain a co-parenting relationship with each other for years to come.
Achieve Your Divorce Through Mediation
The attorneys at Lawrence Law have worked on many New Jersey divorces that have gone through mediation and would welcome the opportunity to review your situation. To schedule a consultation with a family law attorney at either our Red Bank or Watchung office, call us at 908-645-1000 or contact us online.