Article by Capehart Scatchard

In today’s economic environment, many spouses contemplating a divorce are also considering using mediation rather than litigation to resolve their divorce-related issues. This article will explain the benefits and risks of mediation to resolve your divorce issues. It should be stated at the outset that mediation is not available to couples who have a Temporary or Final Restraining Order between them pursuant to the New Jersey Domestic Violence Statute.

Couples who elect mediation usually select a mediator just as they would select an attorney: through personal recommendations, research on the Internet, word of mouth or the like. The hourly cost of a mediator is the same as an attorney, ranging from $250 to $400 an hour in the South Jersey area. The mediator’s fees are generally equally divided between the parties on a pay-as-you go basis. Mediators will conduct as many sessions as it takes to resolve all of the issues in the divorce. When necessary, they will also suggest business valuators, real estate appraisers, accountants, or other experts whose advice may be necessary to resolve the divorce case. In these cases, the couple jointly pays for the outside expert and one report is issued by the expert.

The mediator will require each spouse to retain a separate attorney on a consulting basis as the process unfolds. The document which results from mediation is generally an informal document referred to as a “Memorandum of Understanding.” It is sent to the parties’ respective attorneys, who review the Memorandum with their clients and discuss the pros and cons of the agreement. One of the attorneys then drafts a Property Settlement Agreement using the Memorandum of Understanding. Once the Property Settlement Agreement is signed by the parties, an uncontested divorce can be filed and then finalized through the Court system through a streamlined and simple process.

It is important to understand that divorce litigation and divorce mediation have very different goals. The primary goal of divorce mediation is to amicably resolve the couple’s divorce. As a result, the couple will usually arrive at a more loosely worded and/or more open-ended agreement that does not alienate the divorcing couple from one another during the process. In other words, “keeping the peace” to the greatest extent possible is the goal of mediation.

On the other hand, the goal of divorce litigation is to arrive at a formal agreement which is neither loosely worded nor open-ended. Amicability between the parties is promoted during litigation, but it is not the goal of litigation. As a result, litigated agreements generally tend to be more concrete and definitive than mediated agreements. Neither outcome is “better” or “worse.” The real question in each case is whether the goal of the divorcing couple is to leave the process with an agreement which keeps the peace or to leave the process with a concrete and definitive agreement, possibly at the expense of current goodwill and harmony.

For example, we have seen mediated agreements which state that the term (i.e. the number of years into the future) of alimony “will be left open for later discussion” by the couple. Rather than deal with the issue head on at the time of the divorce, which would have meant conflict between the couple, they put off the issue to a later date. Similarly, we have seen mediated agreements that state that neither party will be the Primary Residential Parent of the child(ren), mediated agreements that leave open the date by which the house should be sold etc. etc. These are the types of agreements that prevent any undue arguing or acrimony during the mediation sessions, but may have to be re-mediated or litigated down the road. These cases fall into the category of mediated cases that may be less expensive and more harmonious in the short term but may become more expensive and argumentative in the long term.

With respect to costs, the commonly-held belief is that private mediation is less expensive than litigation and therefore couples looking to save money may decide to privately mediate their divorces for that reason alone. While it is true that private mediation is usually less expensive than litigation, private mediation is not an inexpensive process. In terms of final cost, couples who elect private mediation should bear in mind that they will be splitting the cost of the private mediator plus paying one hundred percent of the cost of their respective attorneys. In the event that one of the attorneys is dissatisfied with the terms of the mediated agreement, it is the job of that attorney to explain the source of their dissatisfaction and determine whether or not the client wishes to address their concern. Obviously, the more concerns that the attorney raises, the more it will cost to “fix” the agreement. Thus, it is easy to see that in some, but not all, cases mediation may be less expensive than litigation. Also, the cost of re-mediating or litigating unresolved issues at a future date should be factored into the decision as to whether or not mediation is really less expensive and, if so, how much less expensive.

In the end, the primary question which anyone considering mediation should ask themselves is how well they believe they will be getting along with their future ex-spouse down the road. If you believe that you will get along well with him or her and you can resolve future differences as they arise, then mediation may be right for you. If you’d rather see as many issues as possible nailed down at the time of the divorce, then mediation probably isn’t right for you. You should also consider whether you feel as though you have enough information, financial and otherwise, about your spouse, and whether or not you have enough power in your relationship to mediate with your spouse. A mediator will not protect the interests of one spouse over the other spouse, even if the mediator believes that one spouse is getting a bad deal. Ironically, the best way to decide whether or not mediation is right for you is to consult with an attorney. We refer many of our clients to mediation if, after a meeting, we agree that the process is right for them.