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(The divorce is final,  and issues arise)

 By Bruce P. Matez, Esq. APM 

            Divorce and Family Law attorneys spend a significant portion of their time representing clients in disputes that arise after divorce, commonly known as “post-judgment motion practice.” There is a plethora of such disputes such as changes in custody or parenting time, modification of alimony or child support due to changes in financial circumstances, cohabitation by the recipient of alimony, retirement, loss of employment, disability, enforcement of provisions of a marital settlement agreement or judgment of divorce, and college education expenses; the list is extensive. The Court Rules in New Jersey require parties to mediate all custody and parenting time disputes, including post-judgment disputes. Post-judgment motion practice can be very expensive, time consuming, and stressful. The initial motion itself may cost the moving party thousands of dollars in legal fees just for the preparation of the motion, certifications, and exhibits to be filed with the court, even before a hearing. Motions are most often countered with a cross-motion by the other party, again costing that party thousands of dollars in legal fees.

            Mediation can be an effective tool in helping  divorced parents resolve issues in dispute before spending thousands of dollars on counsel fees. In some counties in New Jersey the court will refer the post-judgment disputes mediation through the Rule 1:40 mediation program after an initial hearing before a judge. By the time those referrals are made by a judge, the parties have likely already spent more than three to five thousand dollars ($3000-$5000) or more in legal fees, and still have no resolution. Also, an award of counsel fees against the other party is hard to get in the Family Court.

            Parties and/or attorneys can, on the other hand, utilize mediation before filing a motion. Parties can elect to mediate with or without attorneys present. Obviously, mediating without attorneys is less expensive. If necessary, to preserve effective dates for modification of support, or for other reasons, parties can enter a consent order specifying that the dispute will be mediated before motions are filed and presented to a judge, thereby preserving all rights of the parties. If exchange of documents and other information is necessary, this can be accomplished through mediation. In some counties in New Jersey the court and the family law bar have a cooperative program for these types of mediation through the Rule 1:40 mandatory economic mediation program. If you are involved in a post-divorce dispute with your former spouse, consider mediation as a means of reaching a resolution.

            Bruce P. Matez, Esquire is a Divorce and Family Law mediator in Southern New Jersey. He has been mediating for over 25 years. He practices mediation both in person and online (via Zoom). For more information visit the website of BorgerMatez, P.A. www.njfamilylaw.net. Bruce is the president of the NJAPM.

Written by: Glenn P. Milgraum, Esq.*

You have utilized traditional forms of advertising: print, electronic and word-of-mouth to announce to the world that you are available to be of assistance in resolving marital conflicts and custody issues. Now you have reached the point that your telephone rings. How the initial call is handled will determine if a client relationship will be formed. You, now need to perform a task that eludes many professionals – “Salesmanship.” “Salesmanship” is a very personal task, and as such, I am not going to address it in this article. Instead, I am going to attempt to keep the focus on the initial exchange of information, without having to discuss style.

When first-contact is made with a potential client, popular and frequently asked questions or statements are: “What is the most efficient and inexpensive way I can get divorced?;" or “What is mediation and how will it help me with my divorce;" or “I want (my spouse wants) a divorce and I was told I should contact you;” or “I am (we are) already seeing a marriage counselor, why are your services needed?” Since each matrimonial case and/or potential matrimonial client are unique and different, these are not inquiries that can be easily answered by following a script prepared in advance. It is further complicated if the professional being contacted is not only an attorney, but a qualified mediator as well.

To properly respond to these inquiries, basic information should be gathered during that initial conversation that inevitably contains the following evaluative questions (listed in no particular order):

1. Is divorcing your spouse a fleeting thought, or have you given it much consideration?
2. Is there any chance of reconciliation?
3. Are you separated from your spouse, or have you considered how that separation might go?
4. Have you been served with any legal papers? If so, who are the attorneys already involved?
5. How communicative are you with your spouse?
6. Are there any custody or visitation issues that need to be considered urgently?
7. Is there, or has there ever been, any history of “domestic violence” between the parties?
8. How, or from whom, did you hear about me?

1. You, and your spouse, can mutually retain the services of a “neutral third-party mediator” to assist you both in drafting a mutually agreed upon “Memorandum of Understanding” (MOU) that can be transformed into a “Marital Settlement Agreement” (MSA) to be incorporated into the “divorce.” (Emphasizing the simple fact that if the firm is retained as the mediator, the attorney will not be able to represent either party if the mediation fails); or
2. You can, as an individual, retain the law firm’s services as a “review-attorney” to give you guidance during the mediation process (including assisting in selecting an appropriate mediator), or simply to review the mutually agreed upon MOU, previously reached at mediation. The law firm would be retained to determine if any important issues may be absent therefrom or explain where the courts may deviate from the agreed upon terms if it were to hear the case. The “review-attorney” may also be asked to prepare a formal MSA and may even be asked to process the divorce through the court; or
3. You can retain the law firm’s services straight-away as your attorney to take you through the divorce process, whether it be through collaborative meetings, mediation, arbitration, or the courts.

Unwinding a marriage is not a simple task. Potential clients should not be misled as to “cost-savings” resulting from utilizing one method over the other, as each has its benefits and pitfalls. However, it can be safely said that those matters resolved in mediation have been statistically proven to save the clients substantial monies over those that get fully litigated through trial. Potential clients need to have explained to them the procedures for obtaining a divorce through the courts, from beginning to end, and how much time it can possibly take to complete. They should have a rudimentary understanding of the mediation process and how “mediation” may vary from the “litigation process.” Emphasis should be placed on the fact that ultimately there needs to be “full financial disclosure” exchanged between the parties to make the terms of any agreement reached binding on the parties. They should be advised that “Mediation” cannot only shorten the “discovery” process, but that it can also be just as useful to “extend” the process, as “pacing” is ultimately up to the parties. The obvious needs to be reinforced by stressing the simple fact that the mediator does not have the power to grant a divorce and that ultimately legal filings will have to be made with the Court.  Regardless of how the initial intake call is handled, it behooves the attorney to express that they are not the potential client’s attorney, or mediator, until a written retainer is entered into between the parties.  

* Glenn P. Milgraum, Esq. is the principal attorney at Glenn Milgraum P.C. and is a litigation attorney with over 30 years of matrimonial experience in New Jersey and New York. He is a qualified mediator and appears on the court rosters in New Jersey and New York for “Civil,” “Matrimonial” and “Economic aspects of Family Law” cases. He has also been trained to handle cases that have aspects of “Domestic Violence.” As such, he is a mediation-friendly “Review Attorney.” In New York, his mediation services are conducted under the name of “Morningstar Mediation.”  

Click HERE to contact Glenn P. Milgraum, Esq. for more information.

Important Questions Answered for Parents and Mediators

01/21/2020 | IN MARITAL AND FAMILY MEDIATION

Submitted by Diana M. Longo, CDFA®

Divorcing families face several financial challenges. What was once just enough to cover one household must now cover two separate homes as you divide assets and split incomes. You (the divorcing parents) face increased pressure towards paying for college while possibly experiencing a higher sense of guilt for the lack of funds available.

As a mediator, CDFA® professional and divorce financial planner, divorcing parents inevitably ask me about their responsibilities towards paying for college. “How is this supposed to work given the change in our status?” Here are the answers to their top questions:

Must I pay for the cost of my children’s education?

Each State has its own requirements and there is no direct answer to this question. New Jersey favors the rights of the child towards education. Its leading case is Newburgh v. Arrigo, 88 N.J. 529 (1982). The Superior Court determined that financially capable parents should contribute to their qualifying student/child’s costs for higher education. It has 12 considerations when evaluating someone’s obligation. Among them are:

• Parental goals and values and their effects
• The financial resources of both parents
• The financial resources of the child
• The amount expected and the ability of parents to pay that cost
• Ability of the child to earn income while in school
• Availability of financial aid, college grants and loans

What kind of scholarships are available for my children?

The main federal financial aid programs are Pell Grants, Supplemental Educational Opportunity Grants (SEOG), College Work Study, and Stafford Loans where no interest accrues while the student is at least a half time student. There are two-types of Stafford loans – those subsidized by the government in case of default and those that are unsubsidized. Each has different financial-need requirements and benefits. Their interest rate through June of 2021 is 2.75% but this fluctuates annually. Other scholarships, loans or grants may be available through the college or other sponsors depending upon your child’s ability to qualify.

How do we apply for student aid?

Financial aid begins with the FAFSA (Free Application for Federal Student Aid). I suggest using a phone app or a computer so that the IRS can easily report your data to the U.S. Department of Education. Beware: The government electronically downloads your income tax information. It will catch errors and reports of inaccurate numbers.

What do I need to report on the FAFSA?

The FAFSA requires an applicant’s family to list all income, including income from previous tax years. It requests information about investment accounts, bank accounts and trust funds. In addition, it will calculate the net value (minus debt) of all investment properties.

To view a sample FAFSA worksheet, go to: https://bit.ly/3sH3auX. I also suggest doing an internet search for the FAFSA.gov website.

What assets are excluded?

FAFSA excludes student and parental savings in a qualified retirement account. This includes IRAs, Roth IRAs, and 401(K)s. The FAFSA does not consider the value of your primary place of residence, family vehicles, small businesses, personal possessions, or the cash value of whole life insurance policies.

How much aid can I get?

The FAFSA collects all the required financial information, including the income and assets for both the parents and the student. It then calculates the EFC (Expected Family Contribution) and notifies the student, parent, and application-listed colleges with the release of a SAR (Student Aid Report.) The results are often lower than anticipated.

You will receive only one EFC per family. It includes all matriculated students, including parent-students, who attend an accredited institution at least half-time. This may be a good opportunity if your divorcing spouse returns to college, as this timing may provide additional financial aid into the equation. I suggest filing your tax returns, FAFSA, and college applications early, if possible.

If already at school, how do we report the financial changes of our divorce, especially if we will not know its outcome for some time?

Take a deep breath and call your financial aid office. Speaking about your divorce and personal finances to a stranger may not be something you feel comfortable doing. However, an experienced financial aid officer has worked with multiple families in a similar situation and will easily understand. Politely explain that you are now supporting two separate households. There will be a change in tax information as you will no longer be filing a joint return. Watch your tone of voice and ask if they can use their professional discretion towards adjusting the Expected Family Contribution. Be cooperative and supply what the school requests in a timely fashion.

Should the lesser-earning spouse submit the FAFSA using their lower assets and income as the determining data?

It is often a good choice, but you should also consider additional factors such as age or if their type of assets is exempt from the calculation. Some public colleges require only the FAFSA. They do not need information regarding the non-custodial income or assets. However, if your child goes to a private school, they will most likely require data from both parents, using other formulas to allocate aid from their coffers. For example, they may use the CSS/Financial Aid Profile form. It considers additional factors, such as home equity, annuities and income from stepparents and non-custodial parents. Contact the schools and ask what they use to determine eligibility for grants and scholarships.

This is not to say that you should restrict your child to a public school. A private school may have sufficient grants or scholarship aid to make their institution (and your child’s first choice) affordable.

How can I protect my family’s finances and increase my ability to pay for college?

This is best answered by a College Financial Planning Consultant. I’ve been totally amazed by their thoroughness and creative suggestions. For example, FAFSA calculates 50% of student income and 20% of student assets as eligible for college expenses. However, for the parents, it formulates between 22 to 47% of parental income and 5.64 of parental assets. A specialist in college financial planning is best to advise you on multiple topics including: 1. Where, when, and how to place your assets, 2. Which of your assets to use first, 3. Grandparent gifting (if available) 4. Tax advantaged programs and credits, and 5. How to be more efficient with your resources.

Author:

Diana M Longo, CDFA®

Innovative Divorce Services LLC Parsippany, NJ

Click HERE to contact Diana Longo

The Dependent Resistant Wife

© 2020. Beverly Hays

01/21/2020 | IN MARITAL AND FAMILY MEDIATION

Submitted by Beverly Hays, LCSW, LMFT, APM

My husband, George, and I have been mediating divorces for more than 35 years. My background is that of a family therapist and his experience in finance, engineering, and corporate management, has made us a good team. We work together co-mediating divorces. During our many years of practice, we have worked with a wide variety of couples, each of whom have their own special uniqueness. However, while each couple is unique, they fall into patterns, one of which is the dependent resistant wife.

Let me explain. The dependent resistant wife does not want the divorce, no way, no how! She is holding on for dear life. The dependence is usually based on fear, fear of what will happen to her and the children, fear for her own survival.

In most cases while she sees the signs, she has been in denial. So, when her husband approaches her with his desire for a divorce, she is blind-sided and unprepared emotionally. In these cases, there is an imbalance of power, with the husband being more independent and powerful. The wife, of course, is more dependent. Her way of responding is through anger, sadness, vindictiveness, hurt, self-doubt, recrimination, powerlessness and of course fear.

The husband’s reaction is usually a feeling of guilt, remorse, and justification for the decision he made. If the children are young, he fears losing his relationships with them. The wife, I might add, sometimes uses the children as weapons against her husband.  We have also seen situations where the wife acts like the victim, which is one of the few tools she feels she has left.

Here is a case study which might illustrate some of the dynamics I am referring to.

The Case of Tom and Carol

The facts: Tom is 41, Carol is 39, they have been married 17 years. They have 2 children, a daughter age 14 and a son age 11. Tom has a B.S. in business & finance. Carol has an A.A. in liberal arts. Tom is an I.T. specialist with management responsibilities. Carol has not been employed for the past 15 years since she became pregnant with their first child. Prior to that, for 4 years she was an office manager in a small boutique gym owned by a relative.

Tom and Carol met when Carol was 21 and Tom was 23. He was a client at the gym where she worked. He was impressed with her sweet encouraging personality and her physical beauty. She found him to be mature for his age and respected the determination with which he did his workouts.

They began dating soon after they met. She looked up to him and he enjoyed showing her off to his friends. They married 2 years later. Carol continued with her job for the first 2 years of their marriage, until she became pregnant. They both agreed that she would stay home with the children as had her mother. Tom grew in his career and was promoted to management positions, while Carol loved being a fulltime mother.

As time progressed Tom worked longer hours and his work required some travel. Carol complained that he was away too much and that the children missed him. Carol asked to accompany him at some business dinners, but that rarely happened. She became depressed and started gaining weight. Their sex life, which had been one of the strengths of their marriage, suffered. Tom found her less interesting and less attractive.  He started having affairs until he met someone, he thought he was madly in love with and that is when he asked Carol for a divorce. Carol was blind-sided and devastated.

So, what is the role of the mediator? How can we help Carol?

First, we must determine if this marriage is over. Is Tom certain that he wants to be out of the marriage? The answer is usually, yes.

Second, encourage counseling to help Carol heal and deal with the grief, anger, betrayal, etc. Suggest that Carol call her insurance plan to request a referral. Encourage her to review additional resources that may be available in her area.

Third, help Carol and Tom recognize their new parental roles. This means developing a feasible parenting plan that is appropriate for their needs.

Fourth, through mediation and counseling, help Carol towards her future. We do this by helping her to discover her strengths and interests. This will help her improve her self-esteem, which is essential to her recovery from the divorce.

As mediators we cannot always be neutral. Sometimes we must act as advocates to secure a fair financial future for both parties. This is especially true when one party has little or no knowledge of their finances. Fortunately, in this case the parties had sufficient financial resources.

Tom and Carol were divorced a year after the mediation was completed. They did live by their financial agreement. However, the parenting plan fell apart because of Tom’s travel schedule. He broke up with the woman he thought he was in love with and is now dating someone else. Carol is back in school working on her B.A. in education, which will take another year to complete.

Author:Beverly Hays, LCSW, LMFT, APM 

Morristown, NJ

High Conflict Mediation: 4 Tips for Mediators

© 2020 by Bill Eddy, LCSW, Esq.

High conflict people (HCPs) are highly defensive, preoccupied with blaming others, and desperate to receive validation for themselves. These characteristics may be part of their personality, in which case they bring this defensiveness with them everywhere they go. In some cases, both parties are HCPs, while in others one party is stuck in this defensiveness and the other is reasonable some or much of the time. Legal disputes reinforce defensive traits, so that the successful mediator must do as much as possible to defuse this defensiveness in order to assist the parties in making their own decisions. It is natural for mediators to get “emotionally hooked” and escalate the dispute by becoming over-controlling and feeling responsible for the outcome, but this feeling can be overcome by reminding yourself: “You’re not responsible for the outcome.” “It’s not about you.” “Don’t work harder than your clients.” “It’s another dilemma for the parties to resolve.” The following four tips can help the process.

BONDING:

You need to pay more attention to your relationship with high conflict clients. Emphasize E.A.R.: Empathy, Attention and Respect. When they get upset, rather than appearing angry with them, criticizing their behavior or trying to take a decision-making role (“You’re being unreasonable,” or “Try to control yourself”), instead “I can empathize with how difficult this process is.” “I can empathize with how important these decisions are to you.” “Don’t worry, I will pay attention to your concerns.” “I really respect the efforts you have made to present a thoughtful proposal.” “I respect the research you put into preparing this proposal.” This doesn’t mean that you agree with someone with whom you empathize or show respect. This doesn’t mean you have to listen forever. You can interrupt a high conflict person with an E.A.R. statement. You can also show E.A.R. non-verbally by leaning in, nodding your head, etc. Really resist the urge to take sides and the urge to criticize or get angry at their self-defeating behavior. Emphasize E.A.R. over and over again, and they will usually calm down. You will have to repeat this.

STRUCTURING:

HCPs need more structure, to avoid slipping into their distracting emotions. So give a larger explanation at the beginning. Structure the process around Make a Proposal: “Throughout this mediation, we will focus on the future and making proposals. It’s natural to slip into talking about the past and what each other did badly. Instead, I will redirect you to just Make a Proposal. Then, after you hear a proposal, just respond with ‘Yes, No, or I’ll think about it.’ Then, throughout the process when they slip into arguing, blaming, and focusing on the past, don’t criticize them – instead just interrupt and ask “So, what’s your proposal?” Just keep repeating this throughout the process, and they eventually start asking each other: “Soooo [Mr. Smarty-pants][Ms. Blame-worthy] What’s YOUR proposal?” And that’s really what you want: to train them to do this with each other on their own as well (maybe). Repetition helps.

REALITY-TESTING:

HCPs constantly distort information, usually without knowing it. So they repeatedly present the mediator with impossible issues: “He’s hiding money - I know he is!” “No I’m not! She’s just paranoid.” The mediator will be tempted to lean on one or the other party to resolve this issue, but it’s better to strongly avoid even the appearance of taking sides and instead tell the parties “You might be right! You Have a Dilemma!” and educate them about their realities and their options. “Sir, you might be right. And Ma’am, you might be right. I’ve see cases where one party was truly hiding money. I’ve also seen cases where one party was working very hard and not hiding money, but the other party was still suspicious. In mediation, I can’t resolve this issue for you and I can’t research it. So here’s some options: 1) you can stop mediation and do thorough discovery with separate attorneys, accountants, whatever, and then go to court; or 2) you could do some discovery and then return to mediation and decide what to do next; or 3) you could continue in mediation and ask for more information or work with what you have, and accept the uncertainty of never knowing for sure – and you may never know for sure if you do extensive discovery. You have a dilemma. What would you like to do now?” Avoid the urge to pressure one party to “be more disclosing,” or the other party to “just let it go.” As a mediator, you’re only responsible for educating them and referring to legal and financial advice.

CONSEQUENCES:

HCPs are surprisingly naïve about the self-defeating consequences of their behavior. You will be shocked! Just try not to show it. Instead, educate them by focusing on Indirect Confrontations. These are non-threatening pointers which do not criticize the person or threaten your relationship with them. Instead, Indirect Confrontations involve giving external reasons for various consequences of various future options. “Actually, you may not realize it, but the law does not allow you to do that proposal.” “Actually, our firm’s policy does not allow you to require a party to sign a deed for the house without plenty of time to think about it.” [One party actually came with a deed for his wife to sign, and he hired a traveling notary to show up at our office! So that’s what I told him.] “Sorry, but our policy does not allow me to write an agreement with that much discrepancy in the property division, without a review and sign-off by a separate attorney.” And if you don’t have a policy on a subject, say you need to get back to them – and then develop a policy. HCPs are really good at finding the loopholes in rules and procedures.

Note: Using this approach may not feel directive enough for some clients and professionals, but this is really a question of balance. If a mediator becomes too “directive” by taking sides, pressuring for a settlement, or otherwise feeling responsible for the outcome, you will become one or both parties’ Target of Blame – because now it’s your agreement. However, you may need to be very directive with HCPs sometimes, but be directive in doing the above four methods, while remaining strictly balanced and neutral. For example, you could give them both more structure by asking them each to write down a confidential proposal on an issue for you alone to see. Then tell them if they are within range of an agreement, or so far apart that you wonder if further discussion is unlikely to resolve the issue. Then, ask them if they want to see both of their proposals. This keeps you in a strictly neutral role, while coming up with suggestions for things to try. Also, give them three or more suggestions based on what others have done, and ask if any of those ideas might help them. But most of all, don’t work harder than your clients by becoming too directive. Instead, openly tell them “I’m out of ideas. Can you folks think of anything else. I’ll keep working with you, but I’m not sure that I can resolve your issues. Do you want to keep trying?” This statement keeps the dilemma on the parties and reduces your level of stress. Good luck!

Bill Eddy is a therapist, lawyer, mediator and the Chief Innovation Officer of the High Conflict Institute. He is the author of several books, including High Conflict People in Legal Disputes and So, What’s Your Proposal. For information about live training, online resources, consultation, books and articles, go to www.HighConflictInstitute.com.

Author: Bill Eddy, LSCW, Esq The High Conflict Institute San Diego, CA

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