Frequently Asked Questions (FAQ) about Divorce and Divorce Mediation

There is no predetermined number of sessions. Progress will depend on the complexity of the divorce, the pace the parties want to set, the ability of the parties to communicate and how easily you each make decisions. For instance, if there is a jointly owned house, it will take longer to discuss that than if the couple lived in an apartment. If there are children involved, there are many decision to be made. These just take more time to go through all the details.

In general, most mediations last 8 to 13 hours in 2 to 6 sessions over a few months. My sessions generally go about 1½ hours, although this can be adjusted shorter if one of the parties wants to stop a session early or extend if we are making significant progress. Mediation is by and large far quicker than going through litigation.

If mediation fails, you always retain the right to go through attorneys or to court and have your case settled by a judge. Keep in mind that only 2-4% of cases are settled by a judge in the end. The other 96-98% of cases are settled by the parties, but at a much greater expense than if it was mediated.

The final outcome of the mediation session is a Memorandum of Understanding (MOU). This is a detailed listing of all the items that were agreed to by the parties during mediation, generally about 10-15 pages in length. The parties then take the MOU to their attorneys to review and one of the attorneys will convert this into a Property Settlement Agreement (PSA). It is the PSA that is filed with the court in order to grant the final divorce order. Keep in mind that if the mediator is an attorney, he or she cannot prepare the PSA for the couple. I can recommend mediation-friendly attorneys to act as review attorneys if you need that.

Remember that since the Property Settlement Agreement — in mediation — has been agreed to by both parties, it is less likely to be violated than a court-imposed agreement. It is also a binding contractual agreement. In the chance that it is breached, you would have two options. First, you could return to mediation to resolve the dispute. Alternatively, you could return to court to have the agreement enforced.

There are a few items that do get renegotiated after the PSA is finalized. Child support is refigured on a periodic basis. If the circumstances of the parties should change, alimony can be renegotiated. Life is not static and things do change over time. Only 4% of mediated settlements end up back in court versus 40% for non-mediated settlements.

Not necessarily.  First, an attorney who is a mediator cannot give advice to either party.  An attorney who does will end up being perceived as favoring one party and might run afoul of the Court’s Rules of Professional Conduct (representing adversaries in the same case).

Second, an attorney is trained in and practices being an advocate for one party.  A mediator is trained in and practices being a facilitator to bring the parties to a resolution.  They are different skills and often incompatible.  Some attorneys have mastered both skills, but this is not automatic. A well-trained mediator will understand family law and help educate the parties in what the law says.

Third, mediation of a divorce involves skills beyond just knowledge of the law.  Divorce mediation will involve items such as equitable distribution, child support and alimony, which are number intensive.  A skilled mediator will also know how to deal with the parties’ emotions and to break any impasses that may arise. Mediation is a skill that is seperate and distinct from those of law, mental health, accounting and others.

Participants in a mediation should have representation by an attorney (other than the mediator).  A mediator should be chosen based on their mediation skills and experience as a mediator.

New Jersey’s Uniform Mediation Act (and harmonized court rules) provides for confidentiality and a privilege for all parties in a mediation. In addition, all parties to my mediations agree to a confidentiality clause which stipulates that any information divulged within a mediation session cannot be used in any court proceeding (unless those items are also required in discovery, such as financial records). So, if there are some things that a divorcing party does not want in the public record or does not want a judge to scrutinize, mediation can be helpful in resolving issues in private. Remember that Judges in NJ’s courts are required to report any supected tax evasion or underpayment to the taxing authority.

However, that does not mean that confidentiality is an absolute. There are exceptions to confidentiality and privilege in the Uniform Mediation Act. For instance, in NJ, all persons (regardless of role) are required to report suspected child abuse or the contemplation of a crime to the authorities.

Mediation is an unregulated profession.  Anyone — with or without training or experience — can hang out a shingle and call him or herself a mediator.  That is why it is critical to vet your mediator.  There are a number of different organizations who promote mediator standards of conduct. These standards include: New Jersey Association of Professional Mediators (NJAPM) Mediator Standards of Conduct, Association for Conflict Resolution/American Bar Association Mediator Standards of Conduct and the NJ Court System’s Mediator Standards of Conduct for court-referred mediations. Most of the Standards are similar by the various organizations.

I am a member of the NJAPM and thus held to a complaint and review process whereby my membership and my accreditation can be revoked in case of a serious violation of the Standards of Conduct. As in even highly regulated professions, ethical standards are no guarantee of avoiding violations or of a quality practitioner. You must make your decision to use a mediator based in part on your trust level of the mediator.

No. If there is physical abuse or significant emotional or verbal abuse by one spouse against the other, mediation will not be appropriate. If a restraining order is in place against one party by the other, mediation is not permitted under law (though the court has a domestic violence mediation trial program underway). The parties in a mediation need to be able to make decisions freely without fear or coercion. Parties also need to be able to talk openly with their soon-to-be-ex sitting in the same room. If abuse or the intent to harm the other party is present, this becomes very difficult.

Further, since mediation is voluntary on behalf of both parties, both parties must be willing to participate. This means both parties are committed to being open and honest about all of the marital assets.

On the opposite side, most people think that if there is a lot of anger or feelings of betrayal that this type of divorce cannot be mediated. In fact, the opposite is true. Lawyers and litigation tend to increase anger levels, which makes going forward even more difficult — not to mention expensive. Mediation allows the parties to address the anger.

Feel free to contact me to discuss this further.

Yes. New Jersey does not formally recognize legal separation. However, a couple can agree to separate as a trial to divorcing or if religious beliefs prevent the couple from formally divorcing. A separation agreement or postnuptial agreement can also be useful to guide the couple in the period until a divorce is finalized — especially if the couple is waiting the 18 months to get a “no fault” divorce. Mediation is equally as helpful in negotiating out a separation agreement as a divorce.

A separation agreement is a contract that outlines the terms of the separation, and it generally resolves issues such as child custody and support, alimony, division of assets, and assignment of debt. Similar to a contract, a separation agreement must be in writing and signed by both parties (and notarized). Under a separation, debts and assets are usually locked and made separate for each spouse. Thus, if your soon-to-be-ex runs up large credit card debt, you wouldn’t be responsible for them (from the court’s view). A spouse is also barred from selling or converting marital assets during the separation.

Similar to a divorce agreement, a mediator can help negotiate a agreement put into a memorandum of understanding which can be reviewed by each party’s attorney before being converted into a formal separation agreement. This is not filed with the court.

Yes. Civil Unions, under state law, have equivalent elements to a marriage (basically, a civil union is a marriage all but in name). Couples dissolving a Civil Union would have the same elements to discuss as in a marriage: alimony, equitable distribution, custody and child support.

Yes. As of 2004, the state of New Jersey recognizes Domestic Partnerships between cohabitating same sex couples and opposite sex couples who are over the age of 62. When these relationships need to be dissolved, mediation can be helpful in sorting out the issues no differently than a matrimonial divorce. However, the law in NJ provides for a “divorce” of sorts for couples under Domestic Partnerships, but some of the details are slightly different than dissolving a marriage. For instance, NJ law does not offer a right of entitlement to support, or property sharing when the domestic partnership dissolves. So, a court cannot enforce alimony, or equitable distribution of assets for domestic partners. There are also no automatic rights in regards to children. All of these issues can be discussed in mediation.