Should I hire a divorce mediator?

Key Takeaways

Divorce mediation uses a neutral third party to settle custody, support, and property issues out of court.
It is usually faster, cheaper, and more private than litigation.
Under Court Rule 1:40-5, genuine custody disputes must go to mediation, except where a restraining order is in effect.

While divorce is fairly common, the process can be painful and unnecessarily difficult. Many people today are turning to mediation to handle divorce disputes rather than litigation. Are you going through a divorce and considering hiring a divorce mediator? The mediation process utilizes a neutral third party that can help resolve issues related to custody, child and spousal support, and property division. Additionally, many couples prefer mediation, as it can help resolve the matter faster and at a lower cost than traditional litigation. In accordance with New Jersey Court Rule 1:40-5, custody and parenting time disputes that raise a genuine, considerable issue must be referred to mediation, unless a domestic violence restraining order is in effect. You should also note that the first two hours of court-ordered mediation is free. Read on to learn more about mediation and how our professional Morristown divorce mediation lawyers can help you!

What Is a Divorce Mediator?

A mediator is a neutral professional who works with both parties through a divorce dispute to minimize conflict. They may also be an attorney, but non-lawyers can serve as mediators too. While traditional divorce litigation places the divorcees on opposite sides in a legal battle where only one person can win, mediation attempts to allow both parties to come to a compromise. This is because the mediator does not just represent one side.

Mediation happens outside of the courtroom, so the mediator is basically in charge of guiding the clients through the correct legal process. The mediator typically meets with both parties at once and generally serves as the middleman between the divorcees. Initially, the mediator informs clients about how the process works and fact-checks all provided documentation, then allows the clients to discuss agreements between themselves. The mediator aims to keep the situation as calm and cordial as possible, actively listening to the needs of both parties and offering helpful suggestions. After discussion, the mediator is responsible for drafting an official agreement for both parties to review and accept.

What Issues Can Divorce Mediation Resolve?

It’s important to understand that mediation is not limited to only one aspect of the divorce. Working with a skilled mediator can assist a divorcing couple in reaching an agreement on a number of issues, including:

Child custody and parenting time: Developing a schedule and decision-making agreement that supports the best interests of the child
Child support and spousal support: Determining the appropriate payment amounts based on the income and earning capacity of each spouse, as well as the needs of the child
Division of property and debts: Couples must divide marital property, including the marital home, retirement accounts, and their shared debts.

What are the benefits of mediation?

Mediation can make the divorce process much more pleasant if utilized successfully. Overall, mediation rather than litigation can reduce some pain and trauma that is often associated with divorce. Mediation is also often cheaper and quicker than the traditional litigation process. Many divorcees today opt for mediation to avoid tension both during and after the divorce process.

Why Mediation Often Beats Litigation

Confidentiality: Unlike litigating a divorce, which will become a record, mediation will remain private. Communications during mediation are protected under Court Rule 1:40-4, so statements made during mediation typically cannot be used against you during a trial.
Lower cost: A mediated divorce in New Jersey commonly costs a fraction of a contested trial, and court-connected mediation provides the first two hours free under Court Rule 1:40-4(b).
More control: Rather than a judge issuing a decision, the spouses will create their own agreement, often producing more durable and satisfactory outcomes.
Speed: Mediation is beneficial, as it allows you and your spouse to work around your schedules, rather than relying on the schedule of the court. Additionally, mediation may often resolve faster than litigation.

How do I know if mediation is right for me?

While mediation is quickly becoming the preferred method for divorce settlements, it may not be the best route for everyone. Mediation is only truly successful with an experienced mediation attorney and if both parties are willing to cooperate. It is vital that both clients want to work towards a mutually acceptable agreement. Working with a mediator is highly beneficial if done correctly, but it may not be helpful for a messy divorce with complex financial arrangements. Mediation may also be court-ordered to resolve family law disputes, mostly for divorces involving children. In New Jersey, mediation is actually required for child custody disputes.

When Is Mediation Required, and When Is It Not?

It’s important to understand that New Jersey includes mediation in the court process, but the rules include important safety exceptions, including:

Custody and parenting time: In accordance with Court Rule 1:40-5, custody or parenting time issues that arise and raise a genuine issue, it must be referred to mediation before proceeding to litigation.
Financial issues: Economic aspects of a divorce follow a separate track, typically an Early Settlement Panel followed by post-panel economic mediation, rather than the custody mediation program.
The domestic violence exception: A divorce may not be sent to mediation if there is a domestic violence restraining order is in effect, so that a party is never required to try to negotiate with an abuser.
Not for every case: Mediation relies on the ability of the spouses to cooperate and communicate. If one spouse hides assets or refuses to negotiate in good faith, litigation may still be necessary. This is also often the case for divorces that involve highly complicated finances.