There are different types of divorces. One of them is the mediated divorce. Depending on the circumstances of your divorce, and the manner of communication that you share with your spouse, mediation might be the better option for you. It is also often less costly than say a collaborative or a contested divorce When someone asks me what divorce mediation is, I tell them that it is where you and your spouse try to reach your own settlement, in the presence of a legal professional (typically an attorney) who is trained to help the two of you reach an agreement. The distinguishing factor of a mediated divorce is that neither you nor your spouse is being represented by the attorney who is assuming the role of divorce mediator.
Why divorce mediation, you may ask. Why try to settle your differences with your spouse in such a manner, as opposed to battling it out in court with an attorney at your side? If truth be told, there are actually several reasons why. Here are four of the main ones:
- Mediation is a lot less expensive than going to court.
- Mediation is quicker.
- You and your spouse will be the ones who make the decisions—not the court.
- At the end of the mediation, you and your spouse will lay the foundation for a healthy and cooperative relationship following the divorce. This positive relationship will help you both cooperate with each other in your future dealings with your children.
That being said, is mediation right for every divorce case? Absolutely not.
The basic premise of mediation is transparency and communication. Mediation is not going to work if there is an unwillingness on either side to provide all the needed documentation. It will also not work if both parties find themselves unable to participate effectively and constructively in the presence of the other spouse. From personal experience, I have gleaned that whenever one spouse declares something synonymous with “I’ll give him/her whatever they want”, these people may not be good candidates for divorce mediation. This is because both parties in a divorce mediation need to be able to make decisions. To be able to make a decision, an individual must put more thought into the matter.
Obviously, not all divorce mediations result in an agreement. But, if you have made the decision that divorce is inevitable, I think that it certainly cannot hurt to at least look into this alternative dispute resolution method.
Divorce Mediation Vs. Litigation
Although some New Jersey divorce cases can only be resolved through litigation, mediation can be a much better alternative for several of those cases.
There are 5 major advantages of divorce mediation over litigation:
- Mediation almost always costs less money and takes less time than litigation.
- Mediation allows parties to maintain greater control of their lives and make their own decisions by communicating directly through the mediator, who will listen to the issues and try to help the parties reach their own tentative agreement.
- The mediation process fosters understanding, cooperation and agreements that work for both parties.
- The mediation process is confidential, allowing parties to avoid public disclosure of sensitive information in the courts.
- With mediation, both parties are more likely to comply with those agreements than the judgments which are imposed upon them the court.
What Divorce Mediation Entails
Divorce mediation is a confidential process in which the parties utilize a neutral person (a trained mediation professional) to help them reach their own agreement on all issues which need to be resolved in their divorce. There are 3 important principles which the parties must understand before they begin the divorce mediation process.
- Divorce mediators are not representing either party and hence, refrain from offering legal advice. They do not and cannot give legal advice in any form, shape or manner.
- Divorce mediators have no power to make decisions. The Divorce mediator acts in a neutral capacity, to help the parties to try to reach their own agreements.
- The mediator does not prepare a binding agreement. He/she prepares a document called a Memorandum of Understanding which is not binding until accepted by both parties’ attorneys. After acceptance, it becomes a settlement agreement. This is when it becomes binding.
When Mediation Is Not the Best Option
Despite its advantages, divorce mediation is not appropriate in all cases. It is important for the parties to select an experienced divorce mediator, who will recognize these instances when they arise and direct the parties to resolve any disputes in another manner. There are 5 situations when divorce mediation must be terminated:
- When one spouse is not willing to present all financial documentation; or
- When one spouse wants to financially harm the other spouse; or
- When one spouse is unable to state what he/she needs and negotiate in the presence of the other spouse; or
- When one spouse cannot make decisions; or
- When one spouse is unwilling to take responsibility for his/her decisions.
Are you going through a divorce in New Jersey and are unsure if it’s better to litigate or to mediate? Let Attorney David Salvaggio and his team of divorce attorneys at the Salvaggio Law Group in Morristown guide you through the matter.