We have seen many clients come in thinking mediation will only work when there are few conflicts — but that’s not the case. Mediation can be used independently, allowing the parties to craft their own solutions and mutually beneficial agreements. Other times, a mediator may be able to address some situations outside of court, leaving only the largest disagreements up to a judge.
Mediation versus litigation
Mediation is growing in popularity, particularly in divorce cases, because it has a number of advantages over litigation. Compared with litigation, mediation generally:
- Is less expensive
- Is swifter
- Allows the parties to find a mutually acceptable resolution
- Offers more control over the outcome
- Is private and confidential
- Causes less conflict
Mediation involves working with a divorce mediator who facilitates the negotiations and helps guide the parties to solutions. The parties, not a judge, make all decisions, which allows the people who know the most about the situation to determine their own resolution.
New Jersey’s family law mediation program
Every county in New Jersey participates in the state’s Program for Mediation of Economic Aspects of Family Law Cases. The purpose of the program is to resolve the economic issues in divorce cases, such as the equitable distribution of marital property and alimony. Courts refer a divorce case to mediation if it doesn’t settle at the Matrimonial Early Settlement Panel (MESP). The parties may, however, request mediation at any time before the MESP.
The mediators in the program include both attorney-mediators and other experienced professionals in the financial or mental health fields. All mediators in the program have completed 40 hours of mediation training and are qualified by the NJ Supreme Court.
What’s the difference between mediation and collaborative law?
In mediation, a neutral third party — the mediator — facilitates the negotiations and tries to help settle the case. The mediator can’t give either party legal advice or advocate for either side, but your attorney may be there to advise you during the mediation. When an agreement is reached, the mediator prepares a draft of the settlement agreement for review and revision by the parties and their lawyers.
In collaborative law, also known as collaborative practice, both parties — with their lawyers present –have settlement as their top priority, according to the International Academy of Collaborative Professionals. There is no neutral mediator. Instead, the lawyers, who have training similar to mediators, work with their clients and each other to make sure the process is positive and productive. When an agreement is reached, the lawyers draft a settlement document, which is reviewed and revised by the parties until everyone is satisfied. The settlement agreement is then submitted to the court and entered as part of the judgment of divorce.
Both collaborative law and mediation rely on the free exchange of information and a commitment to resolutions that respect the parties’ shared goals. If mediation doesn’t result in a settlement, you may proceed to litigation. In collaborative law, however, the lawyers and parties sign a Participation Agreement attesting to everyone’s interest in resolving the case. The agreement states that the attorneys will not participate in litigation if the collaborative process ends without an agreement. We can help you decide whether mediation or collaborative law is appropriate in your case.
Leading the Movement Toward Less Conflict in Divorce Through NJ Collaborative Law Resolving divorce issues with less conflict
Collaborative law provides a way to resolve divorce-related disputes with dignity and respect. A collaborative divorce — also known as “no-court divorce” and “peaceful divorce” — offers you and your spouse or partner the support and counsel of your own attorneys but without a judge involved in the decision-making process until the very end. Collaborative divorce also involves child and financial specialists and other professionals who work together as your team. When possible, we encourage clients to employ collaborative law to reduce the conflict in divorce.
What happens in the collaborative law process?
According to the International Academy of Collaborative Professionals, the parties in a collaborative divorce must commit to three principles:
- To negotiate a mutually acceptable settlement without having a court decide the issues
- To maintain open communication and information sharing
- To create shared solutions that acknowledge the parties’ highest priorities
Collaborative law is a voluntary dispute resolution process in which the parties settle their family law disputes without resort to litigation — instead, the parties are creating a settlement agreement to submit as part of the judgment of divorce. In collaborative law:
- The parties sign a Participation Agreement describing the nature and scope of the matter.
- The parties disclose all information that is relevant to the matter.
- The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement.
- Each party must be represented by a lawyer, whose representation ends if the matter goes to court.
- The parties may engage mental health and financial professionals, whose engagement ends if the matter goes to court.
- The parties may jointly engage other experts as needed.
With attorneys experienced in alternative dispute resolution methods, we can guide you through the collaborative law process.
Will collaborative law work in my case?
We know that not every case lends itself to a collaborative process. Depending on the situation, the collaborative approach is likely to be a good option for you if you:
- Are able to maintain respectful tones even during disagreement and behave ethically towards your spouse
- Want to prioritize your children’s needs
- Can listen objectively to your spouse’s needs and give him or her equal consideration
- Believe that cooperation can bring creative solutions to family law issues
- Seek to reach beyond the frustrations of today to plan for the future
- Choose to maintain control of the divorce process and not leave it up to a judge
Collaborative law helps you maintain those values, while reducing the destructive aspects of a conventional divorce.
