Mediation 101: A Guide To Mediation for Divorce, Child Custody & Family Law in New Jersey

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Mediation 101: An Introduction to New Jersey Divorce Mediation

HOW CAN WE USE MEDIATION TO KEEP OUR DIVORCE OUT OF COURT?

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MEDIATION 101: NEW JERSEY DIVORCE

DISCLAIMER

This presentation contains general information and does not constitute legal advice.

Be sure to direct specific questions about your own situation to an attorney.

MEDIATION 101: NEW JERSEY DIVORCE

• What is Mediation?

• Why Use Private Mediation for Divorce?

• How Do We Choose a Mediator?

• How Does the Divorce Mediation Process Work?

• What if Problems Come Up After Mediation?

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WHAT IS MEDIATION?

MEDIATION 101: WHAT IS MEDIATION?

Mediation:

An Alternative to Court

• Mediation is a process wherein a neutral third party, known as a mediator, helps people negotiate solutions to a conflict.

• The mediator does not make decisions for parties the way a judge would, but rather helps the parties create their own solutions.

• Mediation has become popular as a less stressful and often faster and less expensive alternative to courtroom litigation. For this reason it is known as an alternative dispute resolution (ADR) process.

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Private Versus Court -Ordered Mediat ion

• This presentation deals primarily with private mediation in New Jersey divorce cases.

• Using private mediation in your divorce often means that you can keep your case out of court entirely.

• If you file a case in New Jersey family court, you may be required to participate in one or more court-ordered mediation processes as part of your overall court case, including the following:

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Court-Ordered Mediat ion for Parenting Time Disputes in New Jersey Family Court

The court sends most cases involving custody or parenting time issues to parenting mediation:

• Each parent proposes a parenting plan.

• If parents do not reach agreement, the case is put on a priority track.

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Court-Ordered Mediat ion for Parenting Time Disputesin New Jersey Family Court


Court-Ordered Mediat ion for F inancial Issues in New Jersey Family Court

To settle financial issues, such as:

• property division

• alimony, or

• child support

the court might order you to participate in economic mediation.

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Court-Ordered Mediat ion for F inancial Issuesin New Jersey Family Court

PRIVATE DIVORCE MEDIATION:An Alternative to Family Court

MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION?

Why Choose Private Divorce Mediation?

• Divorce is stressful and litigation often increases the stress.

• Divorce mediation can reduce conflict and decrease the stress on everyone in the family.

• Mediation is confidential and can keep your private family matters out of the public record.

• Additional potential benefits include increased control over the process and the results, and decreased costs.

LET’S TAKE A CLOSER LOOK AT THE BENEFITS:

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Benefits of Private Divorce MediationThe Process Reduces Conflict

• Mediation provides a safe and confidential setting.

• The mediation format allows both spouses an opportunity to fully express their wants and needs, reducing frustration and fostering a more peaceful and collaborative environment.

• A skillful and compassionate mediator can help divorcing couples develop a civil relationship and negotiate and separate peacefully.

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Maintaining privacy can be especially important in family law disputes, where the details of a case tend to be highly personal in nature.

Couples who choose to have a judge decide their divorce issues must litigate in open court, where the proceedings become part of the public record.

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Benefits of Private Divorce MediationThe Parties Retain Confidentiality


Mediation is a flexible process:

• Parties can choose a casual or more formal tone.

• Parties can set their own dates and choose their own pace.

Litigation, by way of contrast, is very rigid:

• Proceedings are always formal and rule-bound.

• Parties are at the mercy of court procedures, calendars, and deadlines

The Parties Control the Process

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Benefits of Private Divorce Mediation


• Family law mediators do not make decisions for divorcing spouses the way a judge does; instead, they help the spouses clarify issues, identify the most critical points, and negotiate mutually acceptable solutions.

• Decisions made in mediation are not binding until each spouse signs a final agreement.

• Because couples who mediate tend to be more satisfied with their results, they are often more likely to follow through with their agreements.

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Benefits of Private Divorce MediationThe Parties Control the Results


The time it takes to mediate a case varies depending on factors such as the preferred pace of the parties and the number and complexity of issues, but it is almost always a more rapid process than litigation:

• Divorce mediation in New Jersey takes an average of about three to six months. Some simple cases can be finished in less than three months.

• Litigation typically takes at least a year and often up to two years. Some complicated cases drag on for longer than two years.

The Process Tends to Save Time

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Benefits of Private Divorce Mediation


Family law mediators usually charge hourly rates similar to attorneys’ hourly rates, but the cost to each spouse is much lower because the spouses share the mediator’s fee.

While it is a good idea for each spouse to also have a consulting attorney available, the attorneys will not have to spend time preparing for or appearing in court.

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Benefits of Private Divorce MediationThe Process Tends to Save Money


Mediation helps parents preserve or improve upon the cooperative relationship essential to co-parenting.

Reduces Future Conflicts

Even if serious parenting disagreements arise in the future, parents can often resolve them by returning to mediation.

Protects Children Emotionally

Watching parents argue is hard on children and often makes them feel pressured to choose sides, potentially causing emotional turmoil.

Builds Communication Skills

Parents who reach agreements on parenting matters in mediation often learn valuable skills that can help them resolve future disagreements.

Improves Co-Parenting

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Benefits of Private Divorce MediationThe Process Protects Children


A mediator can encourage full financial disclosure and help you use financial experts efficiently.

POST-DIVORCE ISSUESAfter your divorce is final, a mediator can help you resolve post-divorce issues such as changes in financial support or parenting arrangements.

SMALLER CASES

A mediator can facilitate a fair division of household contents without expensive court involvement.

PARENTING DISPUTES

A mediator can help you preserve your co-parenting relationship and explore amicable resolutions that address children’s best interests.

FINANCIALLY COMPLEX CASES

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Is Mediation Right for Your Case?Mediation can address a wide variety of situations.


CATEGORY 3: THE MOST DIFFICULT CASES TO RESOLVE:

Serious roadblocks are impeding effective communication.

CATEGORY 1: THE EASIEST CASES TO RESOLVE

Parties communicate well and are on the same page regarding most issues.

ARE YOU GOOD CANDIDATES FOR MEDIATION?

CATEGORY 2: THE MORE TYPICAL CASES

Parties can communicate, but not necessarily easily, and there are significant areas of disagreement.

How well can you communicate with each other? Three categories of divorcing couples:

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• Are relatively amicable.

Couples who are ready to finalize a settlement or who need to negotiate one or two minor issues first.

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• Are both self-supporting, or agree on amount and duration of support.

• Agree on the timing of the divorce.

• Agree on a parenting plan, if children are involved.

Category 1

The first type of couple for whom mediation is usually successful:


• Have some significant areas of disagreement.

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• Can control levels of anger or mistrust.

• Can communicate civilly, in spite of some tension.Couples who need more help but are stilllikely to reach a successful settlement throughmediation.

Category 2

The second type of couple for whom mediation is usually successful:


• Lack of financial trust.

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• Problems with drug or alcohol abuse.

• Abusive tendencies or poorly controlled anger.

• Severe parental alienation or threats to kidnap children.

Couples with serious roadblocks to resolution.

Category 3

The type of couple for whom mediation is less likely to succeed:

HOW DO WE CHOOSE A DIVORCE MEDIATOR?

MEDIATION 101: CHOOSING A MEDIATOR

A divorce mediator is a neutral 3rd party who helps divorcing spouses make decisions on issues in their divorce, such as:

• Property distribution,

• Child custody, and

• Child or spousal support.

A divorce mediator is not a judge and does not make decisions for the parties:

• The mediator facilitates an exchange of proposals from each party and ensures a respectful and collaborative atmosphere.

Choosing a Divorce MediatorWhat is a Divorce Mediator?

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At a minimum, find a mediator who has completed a 40 hour court-approved course covering:

• Basic mediation skills,

• Family and child development,

• Basic family law, and

• Divorce procedures.

Interview two or three mediators to ensure a good personality fit.

A mediator who is also an experienced family law attorney can provide accurate information about applicable family law.

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Choosing a Divorce MediatorWhat Qualifications Should We Look For?


Ask your prospective mediator questions about:

• Background, training, and specific mediation experience.

• Fees and what the fees include.

• Preparation and filing of the divorce papers.

• The estimated number of sessions for your type of situation.

• How long each session will generally last.

• Whether you are likely to need experts in your case.

• Whether the mediator will prepare a summary after each session.

• Preparation of a Memorandum of Understanding (MOU) and Marital Settlement Agreement (MSA).

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Choosing a Divorce MediatorWhat Questions Should We Ask?

HOW DOES THE MEDIATION PROCESS WORK?

MEDIATION 101: HOW DOES THE PROCESS WORK?

• If you do not reach agreement on all issues in mediation, either spouse can proceed to court.

• Mediation is also an option even after a divorce is finalized, for addressing any post-divorce issues.

YOU CONTROL WHEN TO FILE FOR DIVORCE

• Many couples choose to begin mediation before either spouse files for divorce, but the process can also begin after filing.

Filing for Divorce in Mediation

• You can choose to begin mediation at any point in the divorce process, for any or all issues.

Who Files for Divorce, and When?

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The mediator will set ground rules at the outset of the process, covering things like:

• Speaking without interruptions by the other party.

• Maintaining courtesy and refraining from personal attacks and inflammatory language.

• Confidentiality.

• Logistics such as location of restrooms and timing of breaks.

• Rules for separate caucuses with the mediator.

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What Happens During MediationAre There Rules for the Mediation Sessions?


• The mediator guides you in negotiations, helping you talk directly to each other and come up with your own solutions to issues.

• Each of you shares complete financial information.

• Brainstorming: An open exchange of ideas fosters creative options.

• Depending on your issues, you may obtain outside expert opinions.

• The mediator prepares a Memorandum of Understanding (MOU) encompassing all of your agreements.

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What Happens During MediationAre There Rules for the Mediation Sessions?


Ensures appropriate data collection and addresses potential tax consequences.

VOCATIONAL EXPERT

FORENSIC ACCOUNTANT

BUSINESS VALUATOR OR APPRAISOR

USING FINANCIAL EXPERTS IN COMPLEX MEDIATION

PENSION APPRAISOR/ACTUARY

Specializes in analyzing business values and income streams.

Investigates hidden income/assets/liabilities and/or asset dissipation.

PROPERTY APPRAISOR

FINANCIAL SPECIALIST

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Gives opinions on value of property like real estate, artwork, or jewelry.

Uses statistical analysis to project the future value of a pension.

Provides information about available jobs that fit education and experience.

Using a Chi ld Special ist in Mediat ion

• A licensed mental health professional with training in child development and family systems can review proposed parenting plans in light of the best interests of the children.

• Choose someone with experience working with parenting issues common to family reorganization.

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Using Attorneys in Mediat ion

• You still need a lawyer unless you choose torepresent yourselves.

• The mediator does not represent either partyand is limited to giving legal information ratherthan advice.

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Can We Both Use the Same Attorney?

Many people choosing mediation think that since they are so amicable it makes sense for them to try to save money by using the same attorney, but this is not possible:

Regardless of how agreeable you are, you still have different and sometimes opposing legal rights and interests.

It is a conflict of interest for an attorney to represent two people with opposing interests.

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• If necessary, you can bring attorneys into the mediation for help with one or more issues.

• Generally the attorneys you hire for mediation will be consulting attorneys, not attorneys providing full-scale representation.

• If you have a fairly simple case, you might need attorneys just to finalize your MSA.

How do we save money if we have to hire a mediator and two attorneys?

• If you have a more complex case, you may want to consult attorneys early in the process.

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The Memorandum of UnderstandingPutting Your Agreements into Writing

• At the conclusion of your mediation, your mediator will prepare an MOU summarizing all of the agreements reached in mediation and outlining any tasks each party needs to complete.

• Generally the MOU is not binding.

• Usually one party takes the MOU to an attorney to draft the terms into a formal MSA.

• The other party has an independent attorney review the MSA.

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The Marital Settlement AgreementPutting Your Agreements into Writing

• The MSA is the formal legal document you both sign and then file with the court.

• Your MSA will include all of the agreements you and your spouse have made and serves to resolve all issues in your divorce.

• MSA’s are also sometimes called “Property Settlement Agreements,” but for couples with children, the MSA includes terms regarding child custody and support as well as property distribution and other financial matters.

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What i f we can’t agree on everything?

• If you are unable to resolve all of your issues, you retain the option of proceeding to court.

• Even removing one or two issues from a case often substantially reduces both the time and the costs necessary to resolve a case.

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Do We Need a Court Hearing to Finalize Our Divorce?

• This depends on what county you are in.

• You will still have to complete paperwork for a no-fault New Jersey divorce.

• If neither of you has filed a complaint for divorce prior to mediation, you can file your complaint at the sametime you file your MSA.

• In some counties, you will still need to attend a brief court hearing to finalize the divorce.

• In other counties, you can complete the paperwork to finalize the divorce without a hearing.

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WHAT IF PROBLEMS COME UP AFTER OUR DIVORCE IS FINAL?

MEDIATION 101: POST DIVORCE MODIFICATIONS

Post Divorce Modifications

What if things change after your divorce is final?

Child custody and child support orders can be modified until children are emancipated (deemed to be independent).

Alimony is modifiable under certain conditions, unless your MSA clearly states that it is not.

All modifications require a substantial change in circumstances.

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MEDIATION 101: POST DIVORCE MODIFICATIONS

Post Divorce Modifications

Amending or Enforcing Your MSA:

The majority of post-divorce issues occur when one party fails to carry out the terms of the MSA.

Your MSA can include an agreement that before either of you files a motion to enforce your terms in court, you will return to mediation to attempt to resolve the issue.

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