NJ Divorce Mediation Guide: What is Mediation?

Mediation is a process where an impartial third party — the mediator — helps guide parties in a dispute or divorcing situation to come to a mutually acceptable solution.  Through asking questions, gathering facts, facilitating discussion, analyzing financial data, generating options and making sure all details are covered, a mediator will guide a dissolving  couple to agreements in areas of parenting, equitable distribution of assets and liabilities, alimony, child support and other issues pertaining to the marriage.

Mediation is built on several foundations:

• Mediation is voluntary.   Any party can stop at any time and no party is forced to agree to anything.
• Parties retain the right of self-determination and make decisions in the light of full information. Parties can ask for documents and evidence in order to make their decisions.  The analogy to the practice of medicine is informed consent.
• Mediation is confidential.  The discussions that occur in mediation are not only confidential but are privileged (similar to lawyer-client privilege that many people are familiar with except that all parties in the mediation hold the privilege) under the New Jersey Uniform Mediation Act and Court Rule 1:40 (and the harmonized New Jersey Rules of Evidence 519).

Mediators are not judges or arbitrators.  Mediators do not make decisions for the parties. Only the parties make decisions for themselves.  The parties always retain the right to agree or disagree to various elements. Mediators do not give legal advice.  Mediators are not therapists nor counselors.

The parties lose none of their legal rights by going through mediation.  In the rare case no agreement is reached, litigation is still available to the parties without prejudice and what is said in mediation is confidential.  Through the mediation process, the parties always have access to legal advice from their attorney, as well as access to any other professionals that are needed.  In fact, over 96% of divorce cases in NJ are not ultimately decided by a judge, but the costs of using the court and paying attorneys for everything are still the same.

Litigating a divorce is akin to a war.  Every war has its casualties and high costs.  In every war, both sides suffer damage and injuries.  If there are children involved, they tend to become collateral damage.  Mediation avoids all of this.