Approximately 98% of family law cases settle without going to trial. Some of them settle immediately because the parties negotiate a Marital Settlement Agreement (MSA) and resolve their entire case before either of them even files a Complaint for Divorce. Some of them settle days, hours or even minutes before trial, after each party has spent tens of thousands or hundreds of thousands of dollars on legal fees. The timeline between those two possibilities can be months or years, depending on the issues involved in the case and the judge’s availability to preside over their case.
In many cases, arriving at a settlement that would finalize a case can be significantly accelerated by participating in mediation. Some people try mediation from the onset in an effort to resolve their entire matter before ever stepping foot in (or Zooming into) a courthouse. Some initiate mediation voluntarily, while others are ordered to do so by a judge.
Regardless of when a case settles, we have yet to meet a divorce litigant who, upon reflecting on their experience after their case, did not wish it would have settled sooner. After the raw emotion involved in divorce subsides, most people regret the amount of their time, energy, emotion and money consumed by their divorce. Making a meaningful effort to resolve your case in mediation sooner rather than later can help you avoid such regret and position your family for a more positive and financially stable future.
If your mediation is being ordered by a judge, it is usually what we call “Economic Mediation.” This means the purpose of our firm’s involvement will generally be limited to helping you resolve financial issues, not custody or parenting time issues. (Most courthouses have separate mediators on staff used at no cost to litigants if a judge is going to order Custody or Parenting Time Mediation.)
Courts usually order parties to participate in this type of mediation in the later stages of a divorce case after they have participated in the Early Settlement Panel program. Sometimes judges also order this if they want you to try to settle an issue you raised in a motion you filed. If this happens in your case, recognize the opportunity. The judge is giving you the opportunity to settle the matter on terms within your control before they issue an order.
When a judge orders you to participate in Economic Mediation, you will need to choose a qualified family law mediator who has the training and experience required to be included in this program. These mediators (who are also attorneys) will give you the first two hours of their time at no charge. The first hour is for their preparation time before the mediation session. The second free hour of their time is the first hour of your mediation session. After the first hour of your session, you will need to pay the mediator at their hourly rate. You should be aware of their hourly rate and be prepared to make that payment at the session.
If you are not being ordered by a court to participate in Economic Mediation but you want to voluntarily try to resolve your outstanding issues through mediation, you can directly contact our office to schedule a mediation consultation. Our mediation consultations are treated differently than other consultations with our firm. They are approximately thirty minutes in length, are conducted by phone with both parties and are free of charge.
The purpose of a mediation consultation is not to give legal advice (as we need to maintain a neutral role between you and the other party), but rather to explain and answer your questions regarding the mediation process. In the event you retain an attorney from our firm to mediate your case, that attorney will mediate your matter at a reduced hourly rate used only for our mediation services.
Before you call us to schedule your consultation, you need to think through the following:
This distinction is important. Our firm’s role in your matter would be very different and the consultation you need to schedule would therefore be very different. Also, once we serve in one capacity (even just during a consultation) we usually cannot then serve in the other due to a conflict of interest. Even though some of our family law attorneys are mediators and our mediators are also family law attorneys, we can only serve in one of those two roles in any given case. Therefore, it is important to think about your preference for the role we would play in your case before you call.
If your answer is (b), and you want an attorney from our firm to serve as your independent counsel in your matter but you really hope to resolve the issues through mediation, then you are scheduling a regular consultation with one of our attorneys. That attorney does not need to be a mediator. We can explain the mediation process to you during your consultation, speak with you about your potential positions regarding each main issue and advise you on the next steps.
We will help you obtain and exchange all the information and documentation you need in order to understand all of the pertinent facts before you are ready to mediate. We will also help you choose a mediator and then prepare for the mediation sessions. If you would like, we can also accompany you to the mediation sessions to answer all your questions along the way, speak on your behalf if needed and make sure all issues and reasonably anticipated issues are properly addressed and fleshed out in a fair and equitable way.
Mediation has grown in popularity as a preferred approach to resolving family law matters for many reasons:
Mediation provides a much more private setting to resolve your personal matters than a courthouse ever can. The sessions are held in our office or virtually via Zoom. No one likes to have their dirty laundry aired in public. (If you do not care about this, then think about your children, who will.) Most parties do not realize that most family law court appearances are open to the public, and that court files are (except in rare circumstances) accessible to the public as well.
Mediation is a confidential process. This encourages both parties to “think out loud” while exploring various options to settling your case in a manner that works best for you and your family. Neither party has to worry about being bound to a certain position or settlement option they expressed if the mediation is ultimately unsuccessful. The terms discussed will not be final or enforceable unless you sign a written Agreement that memorializes the terms discussed during mediation.
Once you file a Complaint for Divorce, you will be assigned to a judge and other members of the court staff who will oversee your case. Regardless of whether you feel you need for the judge to get involved in any way whatsoever, you will officially be a case name on the docket of an extremely overburdened court system.
That means you will be required to complete, submit and exchange various documents in your case by certain dates — even if you do not feel that doing so should be necessary considering your specific circumstances. You will need to attend various court appearances on days that are scheduled in accordance with the judge’s calendar, not yours. If you work outside the home, you will need to take days off. If you have young children, you will need to arrange childcare. Some of these appearances may have little to no effect on your life, but you must go anyway.
You will be expected to quickly make major life-altering decisions about how the rest of your children’s childhood will play out, where you will live and how you will pay your expenses. It does not matter to the court whether you and your ex want to take some time to gradually experiment with different parenting time schedules, whether you want to wait to find out if you are getting that promotion at work to assess whether you can afford to keep the marital home, or whether you just need more time emotionally.
If you think a divorce that you are forced through too quickly sounds unpleasant, imagine how you will feel if it goes too slowly. Imagine taking the morning off from work for a 9:00 a.m. Case Management Conference, waiting until after lunch before an overwhelmed judge can see you (call your employer because you won’t be in by noon after all) and then realizing that the entire conference was to set dates to complete and exchange various types of homework (discovery) that you do not want to do anyway. It may be your classic “meeting that could have been an email” situation and you just missed a day of work and stressed about who was getting your child on the bus while you were rushing to the courthouse and looking for parking.
If the idea of having your case go to trial somehow sounds appealing to you, take a seat. It probably will not happen for well over a year. When your trial does start, you and your attorney may be required to be at the courthouse all day for each assigned day of your trial, even if the judge only spends a total of three hours on your case. That three hours of time will likely be interrupted regularly for the judge to handle other matters.
Whether the court system causes your divorce to stretch out over two years or it forces you to accelerate all of it with discovery requirements and demands on your time that you and the other party both feel is unnecessary, rest assured of one thing — you will be paying legal fees for all of it. Your attorney will be required to follow all instructions and meet all deadlines imposed by the court whether it seems necessary to you or not. Once you file a Complaint for Divorce, the litigants and their attorneys are under the court’s control. The only thing you are in control of is whether you want to step aside with the other party and bypass the madness by giving mediation your best shot.
A mediator will take the time to know your case. They will take the time to understand your needs and those of the other party and any children involved. A lot of people say that they want their day in court. However, the truth is that court is extremely expensive and financially wasteful if it can be avoided.
If you submit yourselves to the court process, you will lose the power to be creative in coming to a resolution in your matter. The court only has a limited number of ways it can resolve issues in a matter. For instance, a court will often require that a marital home be listed for sale after a trial (or sometimes order that a home be listed for sale prior to a trial) and not provide a party with a chance to buy out the other party’s interest unless that party can immediately finance the buyout.
However, during mediation, parties can work out any arrangement that they think is fair, reasonable, and best for their family. The court will then essentially rubber-stamp your agreement and convert it into an enforceable court order.
Judges are not often the wise men or wise women that they are portrayed as on television or in movies. They are former attorneys who are just as likely to make a mistake as anyone else. Some are new to the bench, as family law tends to be a common first assignment for new judges before they are transferred to a different type of court.
Most of them did not practice family law when they were attorneys. The chances of them making a mistake or not giving your matter the attention it deserves are exponentially increased due to the hundreds of cases that they have on their dockets. They are extremely overwhelmed.
Sometimes the other party in your case is such a problem that you cannot possibly discuss settlement terms with them, much less arrive at a settlement. We understand and respect that. Cases like that are what the courthouse is there for. However, if that is not your predicament, please heed this advice: No stranger in a black robe (judge) will be able to make a better decision about your finances, your home and especially your children than the two of you will make yourselves. Nor will a stranger do a better job at fleshing out in detail the provisions you will need in your agreement to account your family’s special circumstances, preferences and anticipated issues that should be discussed now to avoid unnecessary conflict in the future. If you do not believe us and really want to have your “day in court,” you will eventually see what we mean.
Whether you are involving your own attorney in your mediation experience, or paying a mediator in addition to paying your own attorney, mediation is still more cost-effective than going to court. Court is not “free” by any stretch of the imagination. First, the legal fees and costs you incur will be far higher and be incurred for far longer if you submit yourself to the court process than if you go to mediation — even multiple sessions of mediation.
Add to that lost wages for missing work and childcare costs. You will also likely find yourselves experiencing future financial conflicts with the other party because a judge will never be able to anticipate future issues and provide resolutions to them in an order the way a good mediator will in a comprehensive agreement. Top all this off with the unidentifiable cost of stress, anxiety and inability to properly function for several months, a year or more of your life.
All the points listed above mean you will experience significantly less stress, anxiety and frustration navigating mediation to resolve your legal issues than you would if you turn over control of your life and your family’s lives to the court system.
Many people are under the mistaken assumption that going to mediation means you are going to resolve your divorce without attorneys. Not only is this not true, but in many cases, it would be inappropriate and harmful. The concepts of mediation and legal representation are not mutually exclusive. Nor should they be.
Regardless of whether a mediator is also an experienced family attorney, that one person is ethically prohibited from wearing both hats at the same time. When we are serving as mediators, we must always remain neutral and objective. While we can explain certain legal concepts and processes to you, we cannot give you legal advice. If you want legal advice, you need to involve your own independent counsel in your mediation experience.
There are many ways people involve attorneys in their mediation experience, including any or all of the following:
The end goal of the mediation process is to have a binding, written agreement that both parties sign and file with the court. The court will then convert that written agreement into a court order. If you are mediating your entire divorce, the written agreement you need will be called a “Marital Settlement Agreement.” (There are variations of this name, such a Separation and Marital Settlement Agreement or Property Settlement Agreement, but it is basically the same thing.) If you are mediating limited issues within your case while your ultimate divorce is pending or after your divorce is over, the written agreement you need is a “Consent Order.”
Some mediators, including all mediators in our firm, are willing to draft the actual Marital Settlement Agreement (MSA) or Consent Order for you. Others will only draft a memo called a “Memorandum of Understanding.” The Memorandum of Understanding (MOU) sets forth all provisions agreed upon in mediation, but not as comprehensively and with the required legal language of a formal MSA or Consent Order. Your attorney would need to prepare your MSA or Consent Order for you.
The mediators in our firm are Laura Ruvolo Lipp, Melissa M. Ruvolo and Margarita Romanova. Although we are experienced family law litigators, we love helping families and former couples resolve their matters in mediation whenever possible.
We encourage you to learn more about the mediation process by reviewing our related blog articles, videos, and FAQs. For assistance with mediation, we invite you to contact Family Focused Legal Solutions online or schedule an initial consultation by calling us at 973-993-9960. Our firm serves the greater part of North and Central Jersey, including but not limited to Morris County, Somerset County, Bergen County, and Sussex County. All communications are strictly confidential.