Reviewed by Dominic A. Tomaio, ESQ.
Key Takeaways
- A neutral mediator guides settlement but takes no side and decides nothing.
- New Jersey offers private and court-ordered mediation, with the first two hours free.
- Mediation is confidential and becomes part of your final divorce judgment.
- It is barred where a restraining order exists; keep your own attorney.
You may not have to go to court to settle your divorce. Divorce mediation lets you and your spouse work out the terms of your divorce with the help of a neutral mediator, rather than leaving those decisions to a judge. Our Morristown divorce mediation lawyers can help you decide whether mediation is right for you and guide you through the process.
What Is Divorce Mediation?
In divorce mediation, you and your spouse meet with a neutral third party, the mediator, who helps you discuss and resolve the issues in your divorce. It’s important to understand that the mediator does not represent either spouse, nor can they provide legal advice. Additionally, the mediator will not make any decisions on your behalf; instead, their role is to facilitate conversation between the parties so they can reach an agreement on their own.
Mediation can address the same issues a court would, including property division, child custody and parenting time, child support, and alimony.
New Jersey courts also often implement a mandatory economic mediation program for contested divorces in accordance with Court Rule 1:40. Additionally, anything said during mediation is confidential under the New Jersey Uniform Mediation Act.
You should also note that mediation is unavailable when a domestic restraining order is in effect.
Private Mediation vs. New Jersey’s Court Mediation Program
It’s important to understand that, in New Jersey, there are generally two paths to mediation, and understanding the difference can help you anticipate what to expect during your divorce.
- Private mediation is voluntary and can occur at any point during the divorce, even before either party has filed a complaint. You and your spouse can choose your own mediator, who is often a family law attorney or retired judge. During private mediation, you and your spouse will meet on your own schedules
- Court-ordered economic mediation is a considerable part of the contested-divorce process. In accordance with Court Rules 1:40-5 and 5:5-5, if you and your spouse fail to settle at the Matrimonial Early Settlement Panel (MESP), the court will refer the outstanding financial issues to an economic mediation process.
- The first two hours, one hour of preparation time and one hour of session time, are free. After that, you will need to voluntarily continue at the mediator’s rate.
How Do I Prepare for Mediation?
Good preparation makes mediation go more smoothly. Before your first session, gather the documents and information the mediator and your spouse will need, and think through your priorities.
Documents to Gather Before Mediation
- Financial disclosure forms
- Bank statements
- Retirement account statements
- Recent tax returns
- Full inventory of debts and assets
- Appraisals of valuable properties or businesses
- Prenuptial or postnuptial agreements
- If children are involved:
- Medical, educational, and parenting information
Determining Priorities
It’s important to understand that determining your priorities in advance is critical. As such, you should determine what assets you want, and what matters less. Giving this information to your attorney can help them effectively advise you in between mediation sessions.
What Are the Steps in the Process?
Once the mediator has the necessary information, sessions begin. The mediator works to identify each spouse’s goals, foster productive conversation, and guide the couple toward resolving each issue.
In the event the parties can reach an agreement, the mediator will create a Memorandum of Understanding (MOU). Each spouse’s attorney will then turn the MOU into a formal Marital Settlement Agreement, which will be presented to the court and included as part of the Final Judgment of Divorce, which ultimately makes the agreement legally binding. Always have your own attorney review any agreement before you sign.
What Are the Benefits of Mediation?
Couples choose mediation for several reasons:
- Cost: Mediation is generally less expensive than litigation, as litigation often involves considerable discovery and time spent in court.
- Speed: Mediation can typically resolve in a few sessions when both spouses are earnestly committed to the process, whereas a contested divorce can take a year or longer.
- Control: During mediation, you and your spouse will determine the outcome of your divorce, rather than letting a judge make these decisions.
- Confidentiality: In accordance with the New Jersey Uniform Mediation Act, N.J.S.A 2A:23C-1 and following, anything said in mediation generally cannot be used as evidence later, meaning both spouses can speak freely.
- Reduced conflict: When spouses are able to cooperate through this process, it can lower tensions, making divorce easier for the whole family.
How Mediation Helps Children
When a divorce in which parents share children is contentious and litigated, it can be difficult for the children involved. They may feel the conflict between the parents, ultimately creating a more stressful situation.
Because mediation is a cooperative process, it can help reduce hostility, highlight the parents’ ability to problem-solve, and preserve a working co-parenting relationship, which can help support the stability of the children during and following the divorce.
When Is Mediation Not the Right Fit?
Mediation depends on both spouses negotiating in good faith on relatively equal footing, so it is not appropriate for every couple. It tends to work poorly where there is a significant power imbalance, or where one spouse is suspected of hiding assets.
It is critical to understand, however, that New Jersey law does not allow mediation when domestic violence is involved. This is because of the innate power imbalance, as the victim of abuse may be unable to freely speak their mind, making mediation ineffective.
Under Court Rule 1:40-5, a divorce cannot be referred to mediation when there is a temporary or final restraining order in accordance with the Prevention of Domestic Violence Act. If a final restraining order exists, only the separate Domestic Violence Economic Mediation is available, and may only occur if the victim consents to this process.
Do I Still Need My Own Lawyer?
Yes. Even though the mediator is neutral and does not represent you, you should have your own attorney.
Because the mediator cannot provide legal advice to either spouse, obtaining your own attorney is the only way to receive advice on your rights, review the proposed terms of the agreement between sessions, and ensure that the final agreement protects your best interests before signing.
Contact Our Law Firm
When you are ready to explore mediation or other alternatives to a courtroom divorce, contact Townsend, Tomaio, Newmark & Clancy. We can help you decide whether mediation fits your situation and guide you toward a resolution that works. You can also learn more about the divorce process through the New Jersey Courts self-help resources.
