By Evan Weinstein

As attorneys who exclusively practice family law, we aim to help and guide every client with as much sensitivity and grace as possible. Not every divorce is entirely contentious, and not every divorce requires a court to decide the issues in dispute. In fact, the practice of mediation has long been utilized as a less adversarial tool for divorcing spouses to keep their matter more streamlined, and to have greater control of the timing and the decisions that ultimately need to be made.

The role of the mediator is to help facilitate the resolution of the parties’ disputes and to arrive at an agreement. Mediation is most effective when both parties are motivated to resolve their issues outside of court. The more relaxed nature 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.

If you are contemplating whether to engage in mediation, here are answers to frequently asked questions about the process.

Do I need to use mediation?

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.

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 typically 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.

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. Mediation does not always work on the first try but can be successful upon subsequent attempts.

Do I need my own lawyer at a mediation?

Yes and no. You don’t need to bring a lawyer with you for mediation. But, yes, at minimum you should have at least consulted with a lawyer before you begin mediation. Two spouses cannot share the same lawyer. Both spouses need to have their own lawyers to ensure that all of the disputed issues are discussed. 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 walk away with an agreement, but unlike your attorney, your personal best interest is not the mediator’s priority. You need your own lawyer as an advocate and sounding board to ensure a fair and equitable resolution.

What should I do to prepare for the mediation?

You and your attorney will need to know the value (or approximate value) of all marital assets, including bank accounts, real estate, investments, and if applicable, business valuations. Your lawyer can help you review all of these documents and prepare a Case Information Statement. It is critical that you are fully educated and aware of all of the financial issues and settlement options before you walk into the mediation room. You should rely on your attorney, and not the mediator, for all legal advice.

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 to litigants. 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.

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 litigator 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.

Does mediation ensure a fair and equitable resolution?

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. Retaining a good lawyer to advocate for you is the best way to ensure a successful mediation.

Is the agreement reached in mediation binding?

Agreements reached at mediation are not binding unless each party agrees that they are to be binding after the Agreement is reached and each party is doing so freely and voluntarily and not under any influence of coercion. If you go through mediation with your former spouse and it is not successful, you can either try a different mediator or proceed further in the Courts. Unlike a courtroom setting, you are free to leave mediation at your discretion. However, if 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.