If you are getting a divorce in New Jersey, will learn that a large portion of the court’s process itself is mediation processes or hearings. The court will send you through a number of different hearings to help you resolve your case. Today I want to discuss the decisions you can make outside of those hearings and choose outside of the court’s process. I’ll give you some information both about the process itself and pros and cons of each option, so you can learn which will suit your case best. Essentially, there are four main types of mediation processes. They are: mediation, collaborative law, arbitration, and binding arbitration.
Mediation in New Jersey
Mediation is where you retain a third party, like another attorney or retired family court judge and accountant, depending on what your issues are. That third person is in charge of helping the two of you negotiate a settlement in your divorce or family law case. That person helps you to bridge the gap on issues where you need some movement and you can’t agree on your own. Like all of these processes, it is confidential. Whatever you discuss in the mediation process doesn’t go into the judge’s chambers or into your hearing whatsoever.
The second is collaborative law. That’s been a real popular buzzword in the last couple of years. I haven’t seen many cases to actually engage in it. That is where all the parties agreed in advance that they’re going to work towards a common goal, whether it’s to protect the children’s best interest or to equably divide property quickly. You’re agreeing that you have a shared common interest. It’s not an adversarial of case or process. The purpose of collaborative law is the people that you retain, like your expert witnesses, your counselors, and your lawyers are all working together to help you reach an agreement.
It sounds similar to mediation, but it’s different because of the mediation itself. You’re at different ends of a conversation or an issue, and the mediation is trying to bridge that gap. Collaborative law has shared intention. Another difference between mediation and collaborative law is that if collaborative law fails and it does not reach an agreement, you do not reach an agreement to your case in the process. Additionally, all the people you’ve hired and paid for, attorneys and experts, are barred from participating in the contested litigation.
Next is arbitration. Arbitration is similar to mediation. You hire a third person to hear the different issues and to make a decision. In mediation, the mediator helps you reach an agreement. The arbitrator just makes a decision, so whether or not you agree at the end of arbitration, you’ll come to an actual decision from the arbitrator. The process of arbitration usually follows a similar process to having a trial, but it’s usually less formal and less structured, even though they follow the same rules of evidence. It’s also much faster than mediation, trial, and even collaborative law. Mediation can happen over a series of sessions, and collaborative Law can occur over a series of several months, depending on what you’re engaged in. An arbitration, on the other hand, will normally have set days like a trial date where you give testimony and a decision is rendered.
Last is binding arbitration, which is similar to arbitration. Instead of trying to make an agreement in mediation, the arbitrator will give you a decision. In regular arbitration, either party can elect not to be bound by it and be returned to the trial court for a trial. In binding arbitration, you’re agreeing in advance that the arbitrator’s decision will be binding (absent varied limited reasons under New Jersey law, which you can appeal.
Now that’s I’ve defined each mediation option, I’ll go into my personal thoughts about each one and how it works, so you can know whether or not it’s the right fit for your case.
The Benefits of Mediation
I usually say mediation only works for people who don’t need it, and that’s because mediation is only effective if you’ve got two very reasonable people who want to come to their own agreement. Now, if you have two reasonable people wanting to reach an agreement, minimize costs, and expedite litigation, you don’t really need to hire a third person. If both parties have an attorney or understand their issues, you don’t want more attorneys getting involved in the mix. More often than not, I see cases where one party wants mediation because they can sort of usurp some control into the proceeding since it’s confidential. Sometimes there’s not going to be equal bargaining power. There may not be equal control over finances, parenting schedules, or whatever it may be. So more often than not, I see that the parties are not equal and they’re not amicable.
Mediation is more effective and faster if the parties truly are reasonable and get along well enough. If they both have lawyers, I don’t think a third mediator is necessary, but it’s certainly a good process if you’re looking to expedite the hearing and your case instead of going through the court sponsored processes of mediation. While it is faster, it also costs more. Most of what the court will put you through is free, and you’re going to pay mediator separately.
Choosing Collaborative Law in New Jersey
Then we come to collaborative law. To this day, I have never seen the actual case go to collaborative law. It’s a very complex process. Even though it’s intended to facilitate resolution, it’s complex because you’re hiring all these people and you’re agreeing that if you spend all this time and money that none of them can participate in your case afterwards. So, you’re investing a lot with the hopes that it works similar to mediation. If everybody was that reasonable and cooperative in the first place, I don’t think you would need all of this structure around having a collaborative agreement.
What I normally tell people is this: if you’re considering engaging in collaborative law, take one of your positions and inflate it a bit; not unreasonably, but change your position a little bit and ask the other side if they’re going to be considering this issue. For instance, let’s say you have a custody arrangement and you want equal parenting time. I’d ask if the other party is going to consider a nesting arrangement, which is where the children stay in one house and you switch residences. You can learn a lot from the other party’s response. If they say no, I’m not going to consider that, then you know right off the bat that your situation is not good for collaborative law because the purpose of collaborative law is to be open-minded to everything and work together. As soon as there’s one thing you’re not willing to consider, you know it’s not a good process for your case. It’s only good if everybody’s willing to work together.
My Preferred Method: Arbitration
Arbitration is my most preferred method. It’s a good method because you’re getting a decision, you’re following a process, and it’s expedited. The biggest problem you’ll have in New Jersey divorce court and family law court is that your trial can, and often will, be pushed back, even months at a time.
So, if hoping to get a trial New Jersey, it’s very, very difficult and costly. arbitration is not because you’ve taken it out of the whole trial process. You’ve hired an arbitrator, usually an experienced attorney or retired family court judge who knows the law. They’re taking the same information as in a trial, but they’re doing it on a schedule that you set and on days that are promised. You can save yourself a lot of time, money, and stress by choosing arbitration over trial.
There’s one downfall of arbitration: if it’s not binding and you come out with a bad decision, you’re right back to the initial process and it’s been a waste of time.
Determining Whether Binding Arbitration is a Good Fit
Now, binding arbitration is my favorite. Especially when you have a high conflict case, significant issues (like custody), or issues you don’t want to bring into court: allegations of fraud, tax evasion, and more. Binding arbitration is great for the same reasons as the regular arbitration: it’s expedited, it’s less formal, it’s less costly, and you get a similar decision to what you would in family court. The only drawback to binding arbitration is in its name – it’s binding, and there are very few reasons under New Jersey statutes where you can appeal an adverse arbitration decision.
It’s important to note that if you are considering going into binding arbitration, there are two separate statutes that govern arbitration and each statute has slightly different reasons you can appeal. One is broader than the other. So, if you’re going into binding arbitration, make sure you’re familiar with which statute applies.
In a nutshell, those are the four types of divorce and family law mediation. Again, my favorite is binding arbitration. My least favorite is collaborative law, and mediation and arbitration fall somewhere in the middle. The best way to choose a method is to analyze how complex your issues are and how contested your case is. The more complex, the more likely you need arbitration and binding arbitration. The less complex and less contested, the more likely collaborative law and mediation will work for you.
If you or someone you know is contemplating a divorce and want to discuss how marital assets, property and liabilities will be distributed equitably, feel free to call me or any of the family lawyers Montclair in New Jersey at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.