In recent months, backlogged divorce cases in New Jersey have clocked in at an all-time high of 5100. If you are stuck in this legal limbo, it might be time to consider “off ramping” your case into mediation. If you are just starting the divorce process, you can avoid the quagmire entirely by choosing mediation from the outset. You can even begin private mediation before either of you files for divorce.
We want to make sure that divorcing couples are prepared to navigate this situation with the best information available. Over the next few months, we will review the mediation process in detail. We will also discuss how to begin the process and when it makes sense to move a case from litigation to mediation. Knowing what to expect can make it easier to decide whether mediation is the best way to reach your goals.
Today we will start with an overview of exactly what divorce mediation is:
Mediation is an Alternative Dispute Resolution Process
For those of you who are new to divorce mediation, the first thing to know is that it is a method of alternative dispute resolution (ADR). This is exactly what it sounds like: an alternative to resolving a legal dispute that keeps parties out of the courtroom. As court calendars have grown more congested, ADR has increasingly offered faster and more efficient methods of resolving cases.
Mediation, arbitration, and collaborative law are all ADR processes that parties can use in divorce. In arbitration, the parties appoint someone other than a judge to make binding decisions in their case. This could be an expert deciding one aspect of the case, or it could be an arbitrator deciding the entire case. In collaborative law, the parties resolve divorce issues through a team approach. Teams include the divorcing spouses, their separate attorneys, and any experts the parties agree to hire. A key feature of collaborative law is that all parties agree to stay out of court. If the spouses are unable to reach a full settlement agreement through team negotiations, the attorneys must resign. If the spouses wish to proceed with the divorce in court, they must hire different attorneys.
Mediation is the ADR process most used by parties in divorce. While it is available in all kinds of civil cases, it is especially well-suited to family law matters.
Why Mediation Works in Family Law
Every divorcing family is different, yet judges often apply the same cookie cutter solutions in every case. Judges have limited time, and the court process does not encourage creative solutions. By contrast, mediation allows parties to explore all kinds of possibilities. Divorcing couples work together to reach the outcomes that are best for their unique situations.
Mediation is confidential and non-binding. Mediators are neutral. They guide divorcing couples through negotiations and help them explore possibilities. They do not make decisions for the parties the way that a judge or an arbitrator would. Divorcing spouses choose their mediator together and set up as many sessions as they require. If you are unable to reach agreement on everything, you can still go to court. Resolving even one or two issues in a case can significantly reduce both the time and the expense involved.
While spouses participating in divorce mediation do not have to hire attorneys, it is highly recommended. Your attorney can answer questions before and after sessions. Attorneys sometimes attend mediation sessions, but usually only if there is a complicated issue. Other professionals, such as financial or parenting experts, can participate in the sessions as well. Instead of hiring competing experts as parties in litigation often do, parties in mediation often use one joint expert. Once you have resolved all issues, your consulting attorneys can finalize your marital settlement agreement.
Learn More About Divorce Mediation
Over the next few months, we will provide in-depth information about each of the following topics:
- How mediation differs from litigation.
- Mediation and uncontested divorce.
- Court-ordered mediation versus private mediation.
- How to move to mediation from litigation.
- Issues appropriate for private mediation.
- Details of the mediation process.
- What happens when couples fail to resolve everything in mediation.
- How to conclude a divorce after mediation.
- Who can use divorce mediation.
- Modified mediation.
- Mediating complex cases.
- Convincing your spouse to try mediation.
If you have other questions about mediation, or if you are ready to get started, contact us today for a consultation with one of our mediators.