In these uncertain times, specifically where many families are feeling the financial impact of COVID, more and more we are being asked about mediation as an alternative to formal divorce process.
What is mediation?
Before deciding if mediation is right for you, it is important to understand what mediation is. Mediation is one of many tools increasingly used in recent years. In fact, in New Jersey, economic mediation is actually one of the required steps in the formal divorce process. However, since the Court does not require mediation unless fairly late in the process (after parties have filed complaints, conducted discovery, and attended court proceedings) many divorce and family lawyers urge parties to consider attending voluntary mediation early in the process.
Typically, Mediation is conducted by both parties (and their respective attorneys if they have one) meet with a neutral third party who is tasked with helping the two parties reach an agreement. Mediation allows the parties to reach agreements on some (or all) of the issues between them in a way that can often be less costly, faster, and are more likely to be followed by the participants. Said another way, the Court believes that you are more likely to follow an agreement based on something you agreed to do than something the Court tells you to do.
What happens at mediation?
Before COVID, mediation sessions typically occurred in person at the mediator’s office or at the office of one of the parties’ attorneys. Post COVID, some mediation sessions are held virtually via video conferencing. Some mediators will have the parties all meet “across the table” in one “room” and discuss the issues out in the open. Others prefer to utilize a caucus style which includes the mediator meeting privately with each party (and their lawyer) to more fully explore the facts and issues of each side. The process continues either across the table (face-to-face) or in a caucus environment. The mediator will often bring settlement terms, proposals and conditions back and forth between the sides with the goal of moving both sides to mutual agreement on one or more issues.
Either prior to or during the first session, the mediator will try to assess what issues the couple is trying to address and resolve. For example, the mediator will answer questions regarding retirement funds, joint property, marital and non-marital assets and custody. Sometimes the parties already have made decisions on some issues, or they have a pre-nuptial agreement which helps limit the issues with which the mediator will need to assist.
Do you need an attorney at mediation?
Like most questions facing people facing divorce, it depends. It is important for you to understand all of the intricacies that go into achieving a comprehensive settlement, including how the law might apply to your situation. It is important to understand that it is unethical as a matter of law for one attorney to represent two individuals, especially two individuals who are negotiating with one another. Attempting to do so is what is referred to as a “conflict of interest”. While certainly not required, in most cases, Arndt & Sutak, LLC recommends that each party to the mediation process consult with an attorney of his/her own choosing either prior to or shortly after commencing the mediation process. While you are certainly free to attend mediation without counsel present, obtaining legal advice from counsel before signing any binding agreement is crucial so that you are sure to have obtained independent legal advice about the topics you must discuss in mediation. Having this conversation with an attorney gives you the confidence to identify which issues are the most important to you, how the law applies to those issues, and help you determine whether reaching a compromise makes sense for you and your family. I often tell clients that the beauty of mediation is that we are not necessarily bound to what the law says parties should do, but allows the freedom to come up with a fair resolution that fits your family and what matters to you.
Even after mediation, seeking legal advice from an attorney before signing a term sheet or a memorandum of understanding gives you the opportunity to have a lawyer review the agreement to explain the legal ramifications of the choices you are making. It is crucial that you fully understand all of the ramifications of the decisions you are making in mediation, or in your divorce or custody matter, BEFORE you sign anything. Oftentimes, mediators will require that one or both parties obtain an attorney who will prepare the legal documentation necessary to finalize the agreement and possibly your divorce. Remember, the decisions that you make in mediation can, in many cases, have lifelong consequences. Having a personal, trusted and objective advisor will give you the knowledge necessary to make comfortable, meaningful and long-lasting choices.
What are the benefits of Mediation?
*Mediation is often less time consuming than litigation. While mediation lasts hours or days, litigation lasts months and often years. Because resolution at mediation often occurs quickly, children are not exposed to the stress created in households resulting from prolonged litigation.
*Mediation is substantially less expensive than litigation. A process which takes hours to complete will be much less expensive than a process that takes months or years to complete.
*Agreements reached in mediation are believed to be followed more often without issue by the parties since it’s the solution both have come up with and both have ownership of it. Therefore, there is less need to worry about enforcement. Mediation allows you some control of all decisions which must be made as you create your own agreements on your own time schedules and in your own words rather than having decisions thrust upon you by the Court.
*Mediation can resolve developing conflicts. Parties often attend mediation when they anticipate that issues may arise in the future.
*You and your family can begin your new lives. Unfortunately, the inevitable result of a court battle (regardless of the financial outcome) involves blame, bitterness, and damaged relationships. What you do now will color what kind of relationship you have five years from now.