Divorce Mediation: Multiple Paths to Resolution

Submitted by Lynn Norcia, Esq.

When we think about divorce mediation, the timing of the sessions often influences who performs the mediation, as well as the manner in which it is conducted. In New Jersey, there are three types of divorce mediation. The purpose of this article is to compare these three different categories of divorce mediation, based on when they occur in the process of a divorce and highlight mediator qualifications for each category of mediation.

#1. Pre-Complaint, Private Mediation in a Private Setting

Private divorce mediation is a growing area of practice in New Jersey. The parties meet with the mediator prior to, or in conjunction with, filing a divorce complaint with the court. The parties to these mediations self-select and are already pre-disposed to trying to work matters out between themselves as well as to avoid steep legal fees.

Although they may choose this option because it is more economical, this method is not just selected by people with limited incomes. Many of these parties have substantial assets but recognize the cost savings and the "self-determination" benefit of mediation versus litigation. Dislike of attorneys and the litigation process can also play into the parties' decision to choose pre- complaint mediation.

Mediations at this stage are frequently conducted without attorneys present. The mediator may prepare a non­binding summary of agreement reached in mediation that will be incorporated into the clients' property settlement agreement. The participants in this type of mediation are each advised that the mediator cannot provide legal advice. Clients are strongly encouraged to retain their own "review attorneys" who will provide individual legal counsel to them throughout the course of the mediation and may assist in finalizing the divorce with the court.

These pre-complaint mediations are often conducted over a series of sessions depending on the parties' ability or willingness to follow through with "assignments" between sessions, such as the collection of financial information and development of projected budgets, etc.

Mediator Qualifications

Many attorneys, certified public accountants, certified divorce financial analysts, therapists, etc. conduct divorce mediation as one of many services offered through their professional practice. Other mediators in this category have successfully established stand-alone businesses focusing solely on matrimonial mediation.
For private family and divorce mediation, there is no special occupational status, educational degrees required, or mediator training for providing mediation services. Mediators who conduct private and/or pre-complaint mediations do not need to be listed on the Court Roster. However, being listed on the R. 1:40 Roster is one way for a mediator to show that they have a specific qualification in the field.

Private mediators can also distinguish themselves as a qualified mediator by meeting the standards set by NJAPM for inclusion on the organization's list of searchable family mediators. These individuals will have completed a 40-hour family mediation program, are members of NJAPM in good standing, and agree to abide by NJAPM's standards of conduct. A further credential, conferred by NJAPM after a rigorous evaluation process, is the title of Accredited Professional Mediator ("APM"). Criteria for this accreditation may be found on the NJAPM website along with a list of NJAPM members who have achieved this designation.

There are many qualified mediators who may not have met the specific requirements for being included on the Roster (see 3) or choose not to be on the Roster. Along with Roster mediators, they routinely assist parties in resolving divorce and family issues through private mediation.

#2. Custody and Parenting Time Mediation in a Court Setting

For those parties who do not choose private mediation and cannot agree on parenting issues, custody and parenting mediation is typically conducted in a court setting by mediators who are court employees, or court approved volunteers. Equitable distribution and support issues are not addressed in these court mediations.

Although practices vary by court vicinage, generally, unless there is a parenting time consent agreement submitted to the court at the time of the first case management conference, the judge will order the parties to attend mediation with a court mediator.

The court mediators usually hold only one session, which is free to the parties and which is usually conducted without attorneys present. Occasionally, the couple will meet with the mediator more than once, to the extent that the mediator's schedule can accommodate multiple sessions, or, in the case of volunteer mediators, if the parties agree to continue with additional sessions. Subsequent sessions with volunteer mediators are generally not free and are charged at the mediator's hourly rate. See, R. 1:40-5(b).

The mediator usually drafts a Memorandum of Understanding ("MOU") and sends it to the attorneys of record for comment or possible modification. If there is no objection to the MOU, the mediator forwards it to the judge assigned to the case, but it is not incorporated into a court order until the parties have signed the agreement or otherwise consented to its terms.

In some vicinages, the mediators will also handle post judgment parenting disputes.

Mediator Qualifications – Court Staff

The court staff who conduct these mediations must meet the minimum requirements of R. 1:40//l 2(a)(2), including mediation training and graduate degrees or certification of advanced training in a behavioral or social science. Many of these individuals also perform the jobs of non-dissolution and Child Welfare mediator, Domestic Violence Hearing Officer, Juvenile Referee, and/or Child Support Hearing Officer.

#3. Court Ordered Economic Mediation in a Private Setting

The third type of matrimonial mediation is economic mediation that is ordered by the court after a case has failed to settle at an Early Settlement Panel Conference (ESP). All matrimonial cases are scheduled for ESP after most discovery has been or should have been completed. The parties appear with their attorneys and are instructed to be prepared to discuss settlement. If an ESP conference fails to lead to a settlement between the parties, on that same day, the parties must select an economic mediator and schedule their first mediation appointment. Although the parties are free to select any mediator, if they or their attorneys cannot agree on mediator, the court will select a mediator from the Roster of Mediators of Economic Aspects of Family Law Cases maintained by the court. R. 1:40-5 (b) (2).

These mediations are significantly different from the pre-complaint cases. In these post-ESP cases, the attorneys usually provide their ESP submissions to the mediator, and/or the mediator conducts a conference call with the attorneys, before the first session. The attorneys usually attend the sessions with their clients and the sessions often involve a great deal of caucusing with each side.

One of the advantages of mediation at this stage is that the parties have usually exchanged most, if not all, of their financial information.

One of the disadvantages of conducting these post-ESP mediations, is that the parties are often fairly entrenched in their respective positions and animosity can be running high due to months (or years) of adversarial litigation.

Mediation at this juncture tends to be more "evaluative" than pre­complaint mediation. Often one of the driving factors encouraging the parties to reach a settlement at this point is diminishing financial re­ sources and an imminent trial date.

Mediator Qualifications – Economic Aspects

To be listed on the Roster of Mediators of Economic Aspects of Family Law Cases a person must meet the requirements of R. 1:40-12. Those requirements include, among others, being licensed in, and having at least 7 years of experience in, one's field of expertise (e.g., law, finance, psychology); having completed 40 classroom hours of basic mediation training, which includes 22 hours of specialized family mediation training; and having been mentored by a family roster mediator in at least two cases for at least 5 hours. If the mediator is selected from the roster, the mediator must provide the first two hours of services free, usually one hour for preparation, and the first hour of meeting with the clients. R. 1:40-4 (b).

Observations and Conclusions

The public can benefit from understanding the different services offered and the qualifications of mediators in all three types of New Jersey divorce mediation.

Divorce mediation can be very different depending on the timing of the mediation. It can range from a less formal, more client driven approach, with attorneys acting in an advisory role, to a more formal, court driven approach, with the mediator taking on a more evaluative role. The process changes as the parties face looming trial deadlines and increasing legal and expert fees.

Regardless of when or how the mediation is conducted, as well as who conducts the mediation, mediation is usually less expensive, more self-determined and more efficient, and has the potential to achieve better outcomes for families than does traditional adversarial litigation.

 


Author:
Lynn B. Norcia, Esq
Starr, Gern, Davidson & Rubin, PC
Roseland, NJ