Mediation is preferable in many ways to taking your divorce to trial. In general, mediation is cheaper and quicker than going to court. It can reduce much of the animosity and uncertainty of divorce litigation.
But mediation is not magic. It requires that both parties are willing to negotiate. It requires you to know what you want. It requires you to make some tough decisions.
If you do choose alternative dispute resolution (or if it is ordered by the court) you will still want a good divorce lawyer prepping you and advising you.
Is mediation required by the court?
Alternative dispute resolution (ADR) is not automatically required, but it is strongly encouraged by the courts. Any conflicts that you can resolve outside of a courtroom means less time, money and stress in litigation. It also means fewer contentious divorces on the court docket. There are many types of ADR, and choosing the right forum and the right facilitator are important.
Based on your divorce filings, a New Jersey family court may order you to attend a Matrimonial Early Settlement Panel (MESP). This is a type of mediation geared toward an out-of-court agreement. It can cover everything, including custody and parenting time, alimony and child support, property division, and possession of the marital home. The process is conducted by a panel of specially trained attorneys. Both spouses submit a memo that summarizes their positions. The panel then issues a recommended settlement.
An MESP settlement anticipates how a judge would likely rule if the case went to court, but it is not binding. If you agree to the terms, you can proceed to a divorce settlement. Or you may decide, in consultation with your lawyer, that the settlement is unfair or unworkable for you. If you reject the MESP, the court will set a trial date.
What kind of mediation is right for you?
If the court did not steer you to early settlement, you may still benefit from mediating. There are three basic styles of mediation. In a nutshell:
- Facilitative mediation – The mediator is more like a referee. Their role is to help you resolve the conflicts on your own, by providing a framework and interjecting to keep the discussion focused and amicable.
- Evaluative mediation – The mediator is still neutral, but takes a more active role, offering specific solutions, feedback or legal opinions. The mediator may sit down with both parties, or may act as a go-between, having separate discussions with each side.
- Transformative mediation – This is similar to facilitative mediation, but with a greater emphasis on communication and listening to the other party’s wants and need. The goal is empowering the parties to resolve their conflicts.
When “auditioning” professional mediators, ask which style they use and what their philosophy is. It is important that their approach aligns with your situation and your personality.
The role of an attorney in mediation
Typically, your lawyer is not present during mediation. However, your lawyer should not merely you send you to mediation, but prepare you. You need to know your rights and what issues you will be negotiating. You need to be clear on your priorities and where you will or won’t compromise. You need to go in with an open mind, but with a strategy and a vision. If you are assigned to Early Settlement, your attorney will typically draft the memo that is submitted to the panel.
If you go in prepared, mediation can be highly productive. Typically, it occurs over several sessions. You can consult with your attorney before each session, and you can seek your attorney’s advice on a specific issue or point of law during proceedings if necessary to keep the dialogue going.
Mediation does not always produce a settlement agreement. You may still end up in divorce court. But it does serve to clarify the issues and resolve some disputes, rather than needlessly litigating everything.