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Family Law Mediation Process

Family Law Mediation Process In New Jersey
by: Bhavini Tara Shah, Esq. of the Law Office of Bhavini Tara Shah, LLC

May 18, 2009; rev. August 1, 2010

Family Law Mediation is an alternative dispute resolution process that may help parties resolve their case while minimizing their independent expenses with individual attorneys and narrow their disputed issues. Many states have some form of Family Law Mediation process available. As a court certified mediator, I recommend this process to individuals who are either amicable or do not want to hire individual attorneys to address their issues.

As a family law practitioner who has been involved in a number of litigious cases, I find that far too few people understand the mediation process and are frightened of pursuing this cost effective tool to resolve their personal issues. They are often afraid that they will not arrive at a fair resolution and that their legal rights will not be represented.

A traditional divorce proceeding can cost either individual party (under normal circumstances) anywhere from $5,000.00 to $100,000.00 in fees and costs of divorce. (This excludes cases that are uncontested or resolved.) The range of fees and costs are wide due to the following:

a. Number of issues
b. Amicability of the Parties
c. An understanding of the law and your individual legal rights
and responsibilities
d. Child custody and child related issues
e. Equitable Distribution issues (generally any issues concerning businesses, retirement plans, homes, cars or personal property).
f. Alimony
e. Necessity of forensic accounting experts and forthrightness of the parties

Parties contemplating divorce should first determine if they want to process their matter by way of the traditional divorce filing or the alternative dispute resolution method.

I. Traditional Divorce

A. A party may retain their own attorney
B. The attorney files for divorce
C. The attorney serves the complaint for divorce on the otherparty
D. The other party obtains their own attorney and they file an Answer
E. The Parties engage in discovery by way of exchange of interrogatories, Case Information Statements and Notice to Produce. (Some cases may involve depositions or subpoenas for information.) If there are children involved, most counties will require your participation in mandatory child custody mediation.
F. The parties will negotiate during this entire process for settlement with their respective attorneys
G. If the parties fail to resolve their matter they will proceed to an Early Settlement Panel (commonly referred to as ESP).  An ESP is a service the New Jersey Court's offer whereby your respective attorneys will present any unresolved financial issues to two volunteer panelists that the Court has assigned (generally attorneys with several years of practice in the County where your case is venued) to hear present an unbiased opinion on resolution of your financial issues. If this process proves to be unsuccessful, in most counties, you will be required to participate in mandatory economic mediation. (If there still remain child custody issues, the Court may require additional child custody mediation with a private mediator (or order for expert opinion from child custody evaluators.) Each party will be asked to pay for these additional services or for any experts beyond a certain amount of court allotted free time for the mediators.
H. If your case has still not resolved, you will prepare and proceed to trial. Trial preparation costs, depending on the complexity of your case matter can easily cost upwards of $5,000.00 to each party. Trial, depending on the number of days your matter is heard, will cost a minimum of $1250.00 per day per attorney.

II. Alternative Dispute Resolution (ADR)

You have the option of either having an arbitrator hear your case or mediator assist you in the resolution of your case.

An arbitrator acts as a Judge and can decide all of the financial issues related to your case matter. They are not permitted at present to decide custody related matters. (This law is in a State of flux and may be modified to allow mutually agreed upon arbitrators to address this issue.)

There are a number of court certified mediators qualified to assist you in the resolution of your matter. Their job is not to represent individual interests, but to assist both parties in reaching a resolution of all of their issues that they find to be equitable. They can help the parties also resolve their issues concerning children.

ADR Mechanism

A. Parties jointly agree upon a mediator to address their matter and enter into retainer agreements for mediation to commence. Generally both parties will be asked to pay an equal amount of the retainer to the Mediator. The court certified mediator is an attorney mediator with family law experience who has completed the training session for certification as a family law mediator.
B. Generally, the parties will be asked to complete financial information either jointly or individually and submit it to the Mediator after their first session. The Mediator will outline the issues that the parties expect to address and resolve during the Mediation process at the first session.
C. The Mediator will either jointly or individually meet with each party in equal sessions to assist in reaching a mutual understanding to resolve their issues. This will continue for as many sessions as the Mediator and the Parties find fruitful.
D. Once partial or full agreements are reached, the Mediator will prepare a settlement agreement for review by the parties with each party's individual attorneys retained for purposes of review and ultimate filing of divorce. The parties can agree to partially resolve issues or fully resolve issues, as they deem fit.

There are some situations which do not lend themselves to the mediation process as follows:

A. There is a restraining order in effect.
B. There is criminal conduct by either party
C. If the Mediator feels that they cannot be fruitful in resolution or one party is under some undue duress, threat or coercion in participating with the mediation process.

Mediation is a cost effective process that may help some parties resolve their issues by paying for one attorney as opposed to two attorneys so long as they are of like mind to resolve their matter. If issues can be narrowed down, litigation costs may also be kept to a minimum. Mediation can cost parties jointly as little as five thousand dollars. The complexity of a case will determine the ultimate cost of mediation.

Note: This article is a generalized discussion of commonly asked questions regarding the divorce and mediation process in New Jersey.

** This article is not to be reproduced without the prior written authorization of the author.

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1941 Oak Tree Road, Suite 204
Edison, NJ 08820
Phone: 732-906-1212
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