Welcome to another installment of our series on using mediation to avoid divorce court backlogs. Today we will discuss the differences between court-ordered mediation and private mediation.

Private mediation and court-ordered mediation have many similarities. Both processes help people resolve disputes in an informal and non-adversarial environment. In both cases, spouses typically attend mediation sessions together and negotiate with the help of a mediator. A divorce mediator is often an attorney. When acting as a mediator, however, the attorney is a neutral facilitator and does not represent either party or offer legal advice. The mediator will not make decisions for you but will help you communicate with each other and ensure that you stay on track.

The following are the main differences between court-ordered and private mediation.

Court-ordered Mediation

Court-ordered divorce mediation can only occur after the filing of initial divorce papers. Once a case is in the court system, a judge can order parties to attend mediation to resolve either a parenting dispute or a financial dispute. The parties then choose a mediator from an approved court list, and the court pays for the first two hours of the mediator’s time (one hour of preparation time and a one-hour session).

If a judge has ordered you and your spouse to participate in mediation, and you both wish to continue beyond the two-hour time limit, you will be responsible for payment of the additional time at the mediator’s regular hourly rate. If you meet low-income requirements, you can apply for a fee waiver.

Unless a release from mandatory mediation is appropriate, as explained below, New Jersey law generally requires divorcing spouses to participate in court-ordered mediation when they have:

• significant disagreements regarding custody or parenting time, or
• financial issues such as disagreements over alimony payments or property distribution.

Before ordering parties with financial disagreements to participate in mediation, a court may require them to participate in the Early Settlement Program (ESP). ESP generally occurs soon after completion of formal discovery. A panel of two or three experienced family lawyers listen to both spouses, review documents, and recommend a settlement. Spouses are not required to accept the recommendation. If they do not accept it, the court can order them to proceed to post-ESP mediation for at least two hours.

Release from Mandatory Mediation

A New Jersey judge cannot order parents to mediate a custody issue if there is an active domestic violence restraining order between them. Mediation may also be inappropriate in other cases where domestic violence or abuse is an issue. Either a spouse or a mediator can file a petition for release from mandatory mediation. A judge who finds a good reason for release will grant the petition. A mediator can also request that the  court release a couple from mediation requirements if they begin the process and the mediator:

• cannot control abusive behavior by a participant,
• cannot compensate for a power imbalance between the participants, or
• can provide another good reason why continuing mediation is not appropriate.

Mediator Requirements

To be on the court-approved roster, a mediator must complete 40 hours of mediation training. Additional training is required to qualify for Domestic Violence Economic Mediation. All mediators on the roster are either attorneys or experienced financial or mental health professionals.

Private Mediation

Couples can attend private mediation either before or after filing for divorce. They can choose to address only one or two issues or can attempt to resolve the entire divorce. Most couples who use private mediation try to settle everything. Resolving even one issue, however, can reduce the time and cost of litigation.

If you have only a few disputes and are not too far apart in your demands, you may need only one or two mediation sessions. The greater your differences, the more sessions you are likely to require. Any issues that you are unable to resolve in mediation can be addressed in court.

If you reach a full settlement in mediation, you can file your written marital settlement agreement (MSA) in court. After a few more simple steps, your case will be over. If you have not yet filed divorce papers, you can file the MSA along with your complaint for an uncontested divorce.

In private mediation, you can choose any mediator that you and your spouse both agree on. You will be responsible for ensuring that the mediator has the right training and experience. Personal rapport is also important. Mediators bring unique personal experiences and education to the process, and each also adds their own style.

Even after your divorce is finalized, you can use private mediation to resolve post-divorce issues. These can include compliance with court orders or modification of alimony or child support orders or agreements. If you and your former spouse agree on modifications, you can submit your proposal to the court and will often be able to avoid a court appearance.

In our next installment, we will talk more about what kinds of issues you can address in private mediation. Meanwhile, if you have questions about mediation or you are interested in scheduling a private mediation session, contact us for more information.