Your spouse’s suggestion to use a mediator for your divorce can be very good news and an early indication that they prefer a less adversarial negotiation. Mediation is most effective when both parties are motivated to resolve their issues outside of court. 

Using a mediator can help keep the matter streamlined, often gives parties greater control of the timing, and generally offers a pace designed for more thoughtful decision making. The nature and process of a mediation, as opposed to a trial in court, can allow divorcing spouses to create agreements that are more tailored for their specific needs.

Many people incorrectly believe that hiring a mediator during divorce means you don’t need to hire a divorce attorney, but a mediator does not replace a divorce attorney. It is important to know the differences between the two roles to ensure you are in a position to achieve the best resolution for your matter. 

Do I need a divorce lawyer if we try mediation? 

Yes. You need a divorce lawyer as an advocate and sounding board during your divorce – even if you hope to resolve the matter through mediation. At minimum you should have at least consulted with a lawyer before you begin mediation.

The mediator is not your attorney – the role of the mediator is to serve as a facilitator to your negotiation. The mediator’s goal is to have you and your partner walk away with an agreement, but your attorney has your individual best interest as top priority. 

What is the role of an attorney during mediation? 

Your attorney will review your relationship history, look over your financial records, talk with you about your desired outcomes for your family, and help set expectations and strategies for a successful resolution. Additionally, your divorce attorney will help you choose and schedule your mediator and prepare you for mediation. 

Am I required to use mediation in New Jersey? 

In New Jersey, economic mediation and mediation related to parenting time and custody disputes is mandatory at various stages after a Complaint for Divorce has been filed.

What should I do to prepare for the mediation?

It is critical that you are fully educated and aware of all of the financial, custodial, and settlement options before you walk into the mediation room. Remember, the mediator is not your advocate. It is your attorney’s role to help you prepare. 

Prior to mediation, you and your attorney will review the value (or approximate value) of all marital assets including bank accounts, real estate, investments, and if applicable, business valuations. Your lawyer will then assist with the preparation of a Case Information Statement. 

During the actual mediation sessions, you do not need to bring a lawyer with you, but you will be able to make that decision with your attorney’s input as the process unfolds.

Is divorce mediation fair?

Some spouses are initially skeptical about mediation, and fear that the other party will somehow take advantage and manipulate the situation to his or her favor. 

Mediation is not supposed to be advantageous for one party over another. A good mediator will work to stop one spouse from taking advantage of the other, but they are not required to do so. That is not their role. 

You should rely on your attorney, and not the mediator, for all legal advice.

What if the mediation feels unfair or I don’t like the mediator?

You can stop the mediation, even in the middle of it. Unlike a courtroom setting, you are free to leave mediation at your discretion. 

Sometimes mediation does not work for the parties on the first try. If the process is too stressful, or the mediator is not a good match for your matter, you are always free to leave and try another approach.

If you go through mediation and it is not successful, you can try a different mediator before proceeding further in the Courts. Mediation does not always work on the first try but can be successful upon subsequent attempts.

Are agreements reached during divorce mediation binding? 

Agreements reached at mediation are not binding unless each party agrees that to be bound by the agreement, and each party is doing so freely and voluntarily and not under any influence of coercion. If the mediation is successful in resolving the disputes, the result is often the adoption of a Memorandum of Understanding, which lays the foundation for the execution of a Marital Settlement Agreement and entry of a Final Judgment of Divorce. The Marital Settlement Agreement will be prepared by your attorney.

How does mediation work?

Mediation is typically scheduled for a certain amount of time each session. The length of the sessions is usually set in advance by the mediator based on the complexity of the issues and the ability of each party to remain focused. 

The location of a mediation is normally in an office conference room(s). The mediator may ask both parties to sit around a table in one room, or to divide into two rooms to work out the issues and reach an agreement. 

Prior to the mediation, both parties will discuss whether attorneys will be present. 

How do I select a mediator?

If you are attending mandatory economic mediation after an MESP (Mandatory Early Settlement Panel) you and your spouse and the attorneys will have chosen an economic mediator from a roster of mediators on file with the Courts. 

The first two hours of mediation after a MESP are free. However, each mediator will likely need to spend an hour of their time reviewing various paperwork and preparing for the mediation in advance of the first session. It is rare that a mediation is resolved within the first two hours.

Most, but not all, mediators have some sort of legal background, and each brings a unique set of experiences and strengths to the table. 

It is important that the parties trust the mediator. If a mediator does not suit the parties, or there is a question about trust, it is not uncommon to request a second mediator who can start the process again. Generally, there are three types of mediators, and all are expected to remain neutral throughout the mediation process:

• A retired judge will likely have experience handling domestic relations disputes and will be familiar with potential outcomes. The judge’s expertise adds value and can help intervene between the parties in the dispute.
• A lawyer with experience in divorce litigation can be effective as they typically bring expertise in reaching a resolution and are knowledgeable of the law and the underlying legal issues of the dispute.
• Someone with non-legal background will be certified to understand the concepts of mediation including neutrality and confidentiality. This mediator must appreciate the distinction between deciding the dispute versus solving the problem.

The practice of mediation has long been utilized as a less adversarial tool for divorcing spouses, and we are here to support you before, during, and after the mediation with the aim of a successful resolution. 

The decision to get a divorce is a very difficult one no matter where you live or what the circumstances. As attorneys who exclusively practice family law, we aim to help and guide every client with as much sensitivity and grace as possible. 

If you are at any stage of your decision to divorce, do not hesitate to reach out for further clarification or a consultation.