Court-ordered Mediation vs. Private Mediation

Welcome to another installment of our series on using mediation to avoid divorce court backlogs. Today we will discuss the differences between court-ordered mediation and private mediation.

Private mediation and court-ordered mediation have many similarities. Both processes help people resolve disputes in an informal and non-adversarial environment. In both cases, spouses typically attend mediation sessions together and negotiate with the help of a mediator. A divorce mediator is often an attorney. When acting as a mediator, however, the attorney is a neutral facilitator and does not represent either party or offer legal advice. The mediator will not make decisions for you but will help you communicate with each other and ensure that you stay on track.

The following are the main differences between court-ordered and private mediation.

Court-ordered Mediation

Court-ordered divorce mediation can only occur after the filing of initial divorce papers. Once a case is in the court system, a judge can order parties to attend mediation to resolve either a parenting dispute or a financial dispute. The parties then choose a mediator from an approved court list, and the court pays for the first two hours of the mediator’s time (one hour of preparation time and a one-hour session).

If a judge has ordered you and your spouse to participate in mediation, and you both wish to continue beyond the two-hour time limit, you will be responsible for payment of the additional time at the mediator’s regular hourly rate. If you meet low-income requirements, you can apply for a fee waiver.

Unless a release from mandatory mediation is appropriate, as explained below, New Jersey law generally requires divorcing spouses to participate in court-ordered mediation when they have:

  • significant disagreements regarding custody or parenting time, or
  • financial issues such as disagreements over alimony payments or property distribution.

Before ordering parties with financial disagreements to participate in mediation, a court may require them to participate in the Early Settlement Program (ESP). ESP generally occurs soon after completion of formal discovery. A panel of two or three experienced family lawyers listen to both spouses, review documents, and recommend a settlement. Spouses are not required to accept the recommendation. If they do not accept it, the court can order them to proceed to post-ESP mediation for at least two hours.

Release from Mandatory Mediation

A New Jersey judge cannot order parents to mediate a custody issue if there is an active domestic violence restraining order between them. Mediation may also be inappropriate in other cases where domestic violence or abuse is an issue. Either a spouse or a mediator can file a petition for release from mandatory mediation. A judge who finds a good reason for release will grant the petition. A mediator can also request that the  court release a couple from mediation requirements if they begin the process and the mediator:

  • cannot control abusive behavior by a participant,
  • cannot compensate for a power imbalance between the participants, or
  • can provide another good reason why continuing mediation is not appropriate.

Mediator Requirements

To be on the court-approved roster, a mediator must complete 40 hours of mediation training. Additional training is required to qualify for Domestic Violence Economic Mediation. All mediators on the roster are either attorneys or experienced financial or mental health professionals.

Private Mediation

Couples can attend private mediation either before or after filing for divorce. They can choose to address only one or two issues or can attempt to resolve the entire divorce. Most couples who use private mediation try to settle everything. Resolving even one issue, however, can reduce the time and cost of litigation.

If you have only a few disputes and are not too far apart in your demands, you may need only one or two mediation sessions. The greater your differences, the more sessions you are likely to require. Any issues that you are unable to resolve in mediation can be addressed in court.

If you reach a full settlement in mediation, you can file your written marital settlement agreement (MSA) in court. After a few more simple steps, your case will be over. If you have not yet filed divorce papers, you can file the MSA along with your complaint for an uncontested divorce.

In private mediation, you can choose any mediator that you and your spouse both agree on. You will be responsible for ensuring that the mediator has the right training and experience. Personal rapport is also important. Mediators bring unique personal experiences and education to the process, and each also adds their own style.

Even after your divorce is finalized, you can use private mediation to resolve post-divorce issues. These can include compliance with court orders or modification of alimony or child support orders or agreements. If you and your former spouse agree on modifications, you can submit your proposal to the court and will often be able to avoid a court appearance.

In our next installment, we will talk more about what kinds of issues you can address in private mediation. Meanwhile, if you have questions about mediation or you are interested in scheduling a private mediation session, contact us for more information.

How Mediation Differs from Litigation

Welcome to the second topic in our new series about using mediation to avoid divorce court backlogs. Last month we started with an overview of exactly what divorce mediation is.  Today we will talk about the main differences between mediation and litigation. This information will help you understand why it makes sense for most divorcing couples to use mediation at some point during their divorce. Read more

Choosing Mediation to Avoid Divorce Court Backlogs

In recent months, backlogged divorce cases in New Jersey have clocked in at an all-time high of 5100. If you are stuck in this legal limbo, it might be time to consider “off ramping” your case into mediation. If you are just starting the divorce process, you can avoid the quagmire entirely by choosing mediation from the outset. You can even begin private mediation before either of you files for divorce. Read more

Do You Need a Divorce Coach?

Divorce Coach

Last month we talked about how couples counseling can be useful for spouses considering divorce. But what if you have already decided to divorce, and you feel overwhelmed? Should you find an individual therapist? Or could another kind of professional be more useful? While many attorneys are good listeners, attorneys do not generally have the right kind of training to provide the emotional support that is crucial for so many people going through divorce. Your attorney’s job is to protect your legal rights. But there is another alternative to traditional therapy. Today we are going to talk about divorce coaches, what they do, and how they differ from therapists and counselors. Read more

Should You Try Marriage Counseling Before Divorce Mediation?

marriage counseling

Was this month’s Valentine’s Day a wakeup call about the state of your marriage? And if so, what are your next steps? Is your first stop an attorney’s office or is it a therapist’s couch for marriage counseling?

Read more

Preparing for Divorce in 2024

January is the month of New Year’s resolutions and a time when many people are looking for ways to renew their lives. For some, a fresh start includes moving forward with a divorce. Some people decide during the year that divorce is inevitable but wait for the close of the holiday season to finally make a move. Others see the writing on the wall after spending extended time together over the holidays. Whatever it is that has convinced you that this is the time, make sure you are truly ready before you file divorce papers. Here are a few steps to take first: Read more

May the Holidays Bring You Light and Hope

Once again, winter is here. The days have grown short, and the nights are cold. While most of us look forward to the light and cheer of the holidays, for those going through a divorce, light and cheer can feel like scarce commodities. Some people find themselves alone for the first time in years. Others have young children at home but struggle with figuring out how to afford the usual gifts and activities. If this sounds like you, remember that you are in the worst of it right now and better days are ahead. Read more

Addressing Bad Behavior in Divorce Mediation

bad behavior in divorce mediation

Last month we talked about some of the personality traits that can lead to bad behavior in divorce. Divorce mediation can be difficult or impossible when your spouse resorts to tactics like unfairly blaming you for everything, using the kids as pawns, or overwhelming you with extreme emotional reactions. The situation can be even more dire if your spouse is financially dishonest or physically or emotionally abusive.

Not all bad behavior results in mediation being unsuccessful, however. Read more

Scary Behavior in Divorce Mediation

divorce mediation horror stories

If you have read this blog before, you know that as a rule, we strongly encourage divorcing couples to resolve their disputes through mediation. Given our strong support of the process, you may be wondering if we ever think it is not a good idea to engage in mediation. Well, the sad answer is yes. There are cases where one or both spouses show such scary behavior that mediation is not possible.

While virtually no one is always on their best behavior during a divorce, if certain negative personality traits take over, it can make things especially difficult. This does not mean that people who demonstrate such personality traits can never engage in successful mediation, but it does mean that if you spot these traits—either in your spouse or in yourself—there is reason to proceed with caution.

In honor of October, here are a few of the scary characteristics that can derail divorce mediation:

Dishonesty

Ideally, you will go into divorce mediation trusting your spouse 100%. Although this ideal is extremely rare in divorce, you must at least trust your spouse to be financially honest. Spouses – even divorcing spouses – are bound by law to be honest with each other about their income, their assets, and their financial obligations. To help keep the parties on track in divorce mediation, they sign a participation agreement pledging honesty during the proceedings. If either party violates this agreement, it can be difficult to repair trust and move forward.

Vindictiveness

Vindictive spouses are out for revenge. They are not interested in mutually beneficial solutions but instead feel the need to win at all costs. Successful mediation is built on the idea that both parties are pursuing a fair resolution. If you believe that your spouse would rather burn everything down than concede anything, mediation will be challenging.

Narcissism

If your spouse seems to lack empathy and yet still manages to come across as somewhat charming, you may be dealing with a narcissist. Narcissists think they are special. They want to be the center of attention and do not consider other people’s needs to be as important as their own. They may take positions aimed at making themselves look better, such as insisting on primary or joint custody just to look like a good parent, rather than out of a true desire to be a good parent. Successful mediation requires a commitment to reaching a fair resolution, so someone who is continually trying to manipulate things to be heavily weighted toward their own needs will not be easy to work with.

Borderline Behavior

A person suffering with borderline personality disorder is terrified of abandonment and yet often pushes people away first to avoid being left. If your spouse vacillates between putting you on a pedestal and treating you like trash, you might be looking at some borderline traits. Life with someone like this is an emotional rollercoaster and trying to mediate with them will be no different. In fact, it may well be worse, as divorce will trigger all their deepest fears. A person who fears being abandoned by everyone, including their own children, may engage in manipulative tactics in a frantic effort to avoid this.

High Anxiety

People with high anxiety often have trouble letting go of perfectionism. This can translate into difficulty with compromise. The anxious person does not mean to be unreasonable but may be unable to manage the overwhelming fear that certain scenarios stir up. For example, they may be terrified at the thought of running out of money or of losing their home and having to move. Anxiety often spikes especially high around parenting issues. A highly anxious parent may be afraid to leave their children alone with the other parent, even if that parent is a perfectly competent caregiver. This can lead to an insistence on primary custody and an effort to control the rules and environment in the other parent’s home.

Negative Traits and Scary Behavior in Divorce

We all have personalities that include both positive and negative traits. Divorce can bring our worst traits to the forefront, which can lead to scary behavior that may stymie mediation. Hiding information, unfairly blaming the other party for everything that has gone wrong, using the kids as weapons, and trying to manipulate the other party with extreme emotional reactions, such as yelling, sobbing, or making threats, are all forms of bad behavior.

Since October is not just the scary month, but also National Domestic Violence Awareness Month, it is important to point out that the ultimate form of bad behavior is domestic violence or abuse. If you have any question about whether your spouse’s behavior is veering into this kind of territory, take a look at this post for guidance on exactly what domestic violence is and when it should (or should not) make mediation completely out of the question.

What about the other types of scary behavior? If you have identified your spouse in any of the profiles above, you may have a new understanding of where their behavior is coming from. But what can you do with this information? Does it completely rule out mediation? What can you do to move forward, and how can you know when it is time to move to litigation?

In most cases, there is a lot you can do. Come back next month for some details. Meanwhile, do not let yourself be scared off by this post! In the vast majority of cases, divorce mediation offers a host of benefits when compared to litigation. These potential benefits include cost savings, improved privacy, and generally lower levels of conflict.

If you and your spouse are interested in talking to an experienced divorce mediator, contact us today for an initial consultation.

Parenting Mediation: Focus on the Children

Co-parenting can be tricky even in the summer months but fall often presents a series of new challenges. Just as kids are finally settling into their back-to-school routines, the holiday season looms ahead. All the tumult can make for rough sailing, even for parents who thought they had everything worked out. Whether you are just beginning your co-parenting journey and still trying to hammer out an initial parenting agreement, or you have co-parented for years but find that things are no longer working as they once did, mediation can be a valuable resource. Read more