Mediation

By Peter Van Aulen, Esq.

Mediation is a process of using a neutral trained third party professional to resolve your dispute. The process is confidential. What is said during mediation can not be used in Court. The mediator does not represent either party. The mediator assists the parties to recognize the issues and communicate with each other, so they can achieve an agreement. However, it is not the role of the mediator to give legal advice. Mediation purpose and design is to settle a divorce dispute in a non adversarial fashion. Mediation, if successful, can save financial resources and reduce conflict. In a divorce proceeding there is Court mandated custody /parenting time mediation and Court mandated economic mediation.

Court Rule 1:40-5 states that all cases involving custody or parenting time issues which are determined by the Court to be “genuine and substantial” are referred to mediation. Conversely, said rule states that the Court should not refer a case to mediation if there is a temporary or a final order of Domestic Violence in effect. Also said rule states that in cases where there is Domestic Violence, but no Restraining Order has been entered, or cases involving sexual abuse or child abuse the case will still be sent to mediation, but issues of sexual abuse, child abuse and Domestic Violence will not to be mediated. The mediator is to only mediate issues of custody and parenting time in said situations. The parties are required to attend the initial mediation meeting. The mediation sessions are closed to the public. Court Rule 1:40-5(2) states that mediators are not to act as an evaluator and cannot make any recommendation to the Court in regard to custody or parenting time. If the mediator reaches settlement, he or she will draft a Consent Order and may have the parties sign the same that day. Then the mediator will send said Consent Order to the parties’ attorneys for review. Said attorneys have ten (10) days to review the same and write to the mediator notifying them of any objections or requested modifications. If the mediator does not hear from the attorneys, and if the Consent Order was signed by the parties, the mediator will forward said Order to the Judge for his or her signature. Once signed by the Judge, said Consent Order is binding on both parties.

If the parties are not successful in settling the economic parts of their case (alimony, child support, equitable distribution and attorney fees) at the Early Settlement Panel (which is a mandatory proceeding where the parties present their case in front of 2 or 3 impartial divorce attorneys who give a non-binding suggestion of how to settle their case), they are required to pick a mediator to conduct economic mediation. According to Court Rule 1:40-5 (H), if the parties can not agree on a mediator the Judge will appoint one. The mediator will donate two hours of his/her time. After the free two hours the parties can choose to continue with mediation and pay the mediator at his/her hourly rate. The parties will split said cost in accordance with the Mediation Order signed by the Judge which is usually a 50/50 split. The parties are required to provide the mediator tax returns, Case Information Statements, appraisal reports and early settlement panel statements. Also said rule states that parties are to mediate in good faith. If the parties come to an agreement, the mediator will draft a letter containing the terms of the settlement. This letter is used by one of the party’s attorneys to draft the Marital Settlement Agreement. Mediation is an important step in the divorce process. It is important that you are represented by an experienced divorce lawyer. Call Peter Van Aulen today for a consultation.