Divorce can be complicated—and a costly, lengthy divorce proceeding (whether or not it ends in a trial) is often the last thing a divorcing couple wants to deal with. While some divorces may require litigation, there are alternatives available for those who may wish to pursue a different—or concurrent—path.
Each situation is unique in divorce, and mediation is a helpful strategy for many couples considering dissolving their marriage—or even those who have already started the process—and who want to find a more amicable, affordable way to resolve issues. Mediation can also work for couples who are divorced but have additional issues to address as life circumstances change.
What is mediation?
Mediation is a method of alternative dispute resolution (ADR) that allows divorcing couples to work together on their divorce settlement rather than having the court dictate its terms.
In mediation, couples meet with a neutral third-party mediator trained in structured conflict resolution processes. Focused on resolving the issues involved in a divorce or post-judgment matter fairly, mediation sessions can be held jointly or individually, with or without the presence of a divorce attorney.
Mediation is often a good option for couples who want to:
- Avoid the expense of a trial
- Keep divorce proceedings as cooperative and respectful as possible
- Ensure that the details of their marital settlement agreement stay out of the public record
- Expedite the divorce process and avoid court-related delays
Mediation can take place at the beginning of separation and divorce, or even years later to modify a divorce decree. It can also be used to complement the litigation process; parties can use mediation to reach agreements on issues like child custody, equitable distribution, or spousal support even as they are in the midst of divorce litigation.
Types of issues that can be addressed in mediation
As long as you and your spouse are willing to be open to compromise and try to understand each other’s reasoning, mediation can address a variety of legal matters, from child custody and child support to asset distribution and alimony.
Here are some of the most common issues resolved through mediation.
Division of assets
In New Jersey, marital assets (bank holdings, investment portfolios, retirement accounts, vehicles, real estate, jewelry, etc.) and liabilities (student loans, mortgages, credit card debt, liens, etc.) are subject to equitable distribution—and it’s important to note that “equitable” is not synonymous with “equal.”
Mediation is an option for those who prefer not to have the court determine how these assets and liabilities will be divided. As long as a divorcing couple can reach mutually agreeable terms for a Marital Settlement Agreement through mediation, they are not bound by the laws of equitable distribution as a court would determine it. They can be creative to help the unique needs of their family.
Child custody and parenting time
Even in the most amicable of divorces, it can be challenging to arrive at mutual agreements about matters such as child custody decisions and parenting time schedules.
As long as there isn’t a history of abuse or domestic violence, mediation can help keep these decisions in the hands of the parents, rather than the courts.
Through mediation, you and your co-parent can work together to come to agreements about:
- Who will retain legal and physical custody of the children
- What your parenting time schedules will look like
- How and where parenting time transitions will occur
- How holidays, birthdays, and school vacations will be divided
- And more
Most importantly, making these decisions jointly can provide your children with the stability and peace of mind they need to more successfully navigate this upheaval in their lives.
Whether you’re paying child support or receiving it, child support is a complicated part of family law. Most states have guidelines for determining child support payment amounts, but these consist of general rules and do not take into account the unique makeup and needs of individual families.
In divorce mediation, both parties are legally required to fully disclose all financial assets, not just their salaried income. When this information is combined with the agreed-upon custody and parenting time schedules, it can be easier to draft a fair and reasonable child support agreement.
For example, child support payments when the higher-earning parent is also the legal and physical custodian will look different than if the parent with a lower income is the primary caregiver.
Mediation can also help you create a basic framework for additional extracurricular activities, school fees, or medical expenses that may arise in the future.
It’s not uncommon for spouses to have unequal education and career backgrounds and, subsequently, disproportionate earning power. Spousal support, also known as alimony, is often awarded to one spouse to help them increase their education and alleviate this financial disparity.
Divorce mediation gives both parties more flexibility in determining the amount and duration of spousal support payments than the court system does. It also gives you the power to declare the spousal support agreement modifiable or non-modifiable, an important issue if both parties have (or will have) similar earning potential.
Things to keep in mind when choosing mediation
While mediation is a desirable option for many divorcing couples, there are a few factors to bear in mind before making any strategic decisions for your divorce.
Mediation may not be right for all divorces
Mediation provides many benefits to divorcing couples, but there are some scenarios where it might not serve your best interests.
For example, involving the court and other appropriate agencies (such as law enforcement or child protective services) can increase protections if there is any history of domestic violence or abuse. If there is domestic violence, mediation can still occur, but you should look to find a mediator specifically trained in this area, who can offer nuanced guidance given the circumstances.
Additionally, a divorce lawyer and trial are better in complex cases where one spouse has a history of lying or deceitful practices or has demonstrated an intent to slow down proceedings.
Mediators and lawyers play different roles in the mediation process
It’s also important to know that while mediation is an excellent tool for resolving a difficult situation, mediators do not act as lawyers. While some lawyers are trained mediators, these are two separate roles. Mediators cannot provide legal advice, nor can they tell you whether your agreement is equitable. They also cannot finalize a divorce—a judge still has to sign off on a mediated divorce settlement.
That’s why it’s important to involve an experienced divorce attorney in the process. Using a mediator and a lawyer is still usually less expensive than a divorce trial and provides the added benefit of ensuring that you don’t sign an unfair agreement or inadvertently give away rights in the future.
Having an attorney on your side from the start becomes particularly valuable in the event that you are unable to resolve all issues through your mediator, as any pending concerns must be taken before the court.
Speak with an experienced New Jersey divorce mediation attorney
The family law attorneys at Jacobs Berger are dedicated to de-stressing the divorce process. Our solutions-oriented approach is focused on helping you create the future you want for yourself.
We have extensive experience assisting with divorce mediation and excel at providing communicative representation that recognizes your unique situations and needs.
Make an appointment to coordinate your strategy session with our team today.