Mediation is a method of resolving a divorce in New Jersey that is less acrimonious and painful than a trial, and is much less expensive and time-consuming. Unlike an arbitration, which is basically a more informal trial where a neutral third-party decides the outcome, the purpose of a mediation is to try to reach a settlement that both sides can live with.

What follows is a transcript of the below video.

Hi, everybody. I hope you’re doing well. I want to do a video today about mediations of divorces in New Jersey and I have to tell you I am very much in favor of these. I think mediations are a great form of alternative dispute resolution, the other major form being arbitration, and I’ll discuss that in a separate video, but I’m a big fan of mediations. I think they can save a lot of time and money. Keep in mind that 98% of all divorce cases are going to wind up settling, and I’ve mentioned this in other videos. I think the average family law judge in New Jersey is probably only doing about three or four or five divorce trials in a year and they have probably hundreds of cases on their docket. Everything else is going to settle one way or another. There’s really no reason that the vast majority of cases shouldn’t settle because, more often than not, you can pretty much tell what a divorce is worth but sometimes the parties really have to come to their own agreement, and that’s a critical thing because if you don’t settle the case, a judge who does not know you very well is going to impose an agreement on you.

And so it’s always, I think, better to have a settlement that’s your own that you can live with rather than having a judge impose something on you. There are times obviously you can’t do that. There are times the other side is being so unreasonable that you just have to go forward with a divorce trial, but more often than not it’s not really necessary and all you’re really doing is making the lawyers wealthier and dragging the process on. So we like to do a lot of things called alternative dispute resolution and mediation’s a key part of that, all right.

A mediation is very simple. It is simply both parties sitting down in front of a third person, okay, or third party known as a mediator who is an attorney, okay. Both sides present their case to that person and he doesn’t say who’s right and who’s wrong so much, that’s really more about arbitrating, okay. The mediator is just trying to get the two sides to come together to an agreement. Now he might look at the submissions of both sides and decide that one side is more right than the other and he might try to impress that on the other person, but he can’t really force it on anybody. A lot of times there’s a lot of give and take in these mediations, all right. Again, it’s not so much about proving that you’re right. It’s about trying to come to an agreement that both sides can live with. That’s a critical distinction.

Now I’ve said a lot there. Let me start to break some things down. First of all, who is a mediator? Well, a mediator should generally be an attorney who’s familiar with divorce law in New Jersey. And that sounds pretty obvious, okay, but I get these cases a lot where people are just finding mediators on the internet, some of whom are not even in New Jersey, many of whom are not lawyers. They just kind of style themselves as mediators and they go to these people and they try to come to an agreement and it’s just a total disaster. Don’t even waste your time, okay, or money. A mediator should be somebody who your attorney is familiar with in general and who he has been a part of selecting if at all you can do that, all right. If you can’t come to an agreement on mediation, if you can’t agree with the other side to mediate, guess what? The court’s going to impose it on you anyway, okay. That’s just how it is. You’re going to wind up going to an early settlement panel where you’re going to appear in front of a couple other attorneys who are going to give their opinion as to what you should do in the case. When that fails, they’re going to send you out to economic mediation.

So my thing is, I’m always thinking why not just start with a mediation if we can, all right, and so what I like to do is I’ll contact the other attorney and I’ll provide them with a list of mediators who I think would be good for this case and I’ll see if we can agree to one. This is critical. I don’t always provide the same list because every case is different, okay. If I’m representing the wife, for example, and I think the other side who’s representing the husband has a difficult client, that’s going to be a very different choice of mediator than if it’s a different circumstance, okay. If the other side represents the husband and that husband’s being difficult, I might pick a mediator who I think is very aggressive, who can really throw down a hammer, okay, and really put that guy in his place and explain to him why he’s wrong or explain to him the facts of life and explain to him why it’s in his best interest to try to work out a settlement, okay.

But conversely, if I represent the husband and the other side represents the wife, and I think the wife is being difficult, I won’t use a mediator like that because, especially if it’s a male mediator, that’s just going to cause that that person to clam up, they’re not going to be very receptive. They’re just going to think, “Well, this mediator is bullying me the same way my husband bullied me,” and that’s not going to get us anywhere. So in that circumstance, I might choose a female mediator who that person is going to be more comfortable with because at the end of the day that’s really what we’re trying to establish is comfort. You have to come to an agreement that you’re comfortable with, okay, and it’s very hard to do that with a mediator who’s just hitting people over the head like it’s a nail and a hammer. Again, there are times you have to do that and you have to know that.

I made the mistake one time of allowing my adversary to choose a mediator I had never heard of, which was stupid because I know so many of them, I never should have gone with somebody I never heard of and the guy was nice enough, but we went there and it was a total waste of time because I could tell that this guy was just friends with the other attorney and he was trying to help him out. I’m not going to mention names because I don’t want to accuse anybody and get in trouble here. But the bottom line is he was trying to convince me that I was wrong, which I wasn’t, instead of really trying to get us to an agreement, okay. And we never came to an agreement and long story short the mediation failed and we wound up settling on my terms anyway. And I don’t mean that to brag but just to point out that a mediator who is an unfamiliar quality, unfamiliar quantity I should say, well both, that’s probably not the best thing. You need to know the different personalities. You need to know their experience. And you need to know that they’re going to be fair and unbiased, okay.

So when you’re doing the actual mediation, and this is why you need an attorney, what winds up happening is both sides will ahead of time submit basically position papers to these guys. One of the mistakes I see people making is they try to go to mediation without an attorney and they say, “Well, my wife doesn’t have one. We’ll go without one.” Well guess what? The mediator is not there to be your attorney. He’s not there to tell you really what the laws are too much or, what’s worse, one side has an attorney and the other one doesn’t. Well, that’s going to be a disaster, I can just tell you right now, because now you’re in an asymmetrical bargaining position because they know what they’re doing and you don’t.

So ideally you’re both going to have your own attorney and your attorneys ahead of time are going to tell the mediator what the case is about and what your position is. They’re going to outline all the different issues. Is there a marital residence? Is there a spousal support component? Is child custody and parenting time an issue? What about child support? What about debts? All these kinds of things. Your attorney will create an outline of all these things and explain to the mediator what your position is so that, by the time you show up to the actual mediation, the mediator isn’t coming at this with no knowledge, right? He already is very familiar with it. Then during the mediation, the mediator will take time to meet with both of you guys individually and kind of just sort of understand from your perspective a little better what’s going on and talk to the other side and see if they can just sort of fashion an agreement.

Now, what you need to understand about this is a mediation in general is non-binding. That means the mediator can’t simply say, “Here’s what I think has to happen,” and then it’s imposed on you. That’s not how this works at all, okay. This is either you come to an agreement or you don’t, but here’s the thing. Here’s what people misunderstand a lot. If you come to an agreement during the mediation, even if you don’t really sign anything, it is actually enforceable against you. There’s a case called Willingboro, okay, where it says if you’ve gone to the expense of doing a mediation and you guys have an agreement, you can’t just back out of it later and you can’t just start manipulating the terms and adding other things.

I’ve got this situation actually right now, I got an email from an adversary of mine yesterday and he’s a good enough guy but now all of a sudden he’s trying to change things that we had agreed to. You know, I agreed to a certain lump sum amount of money and now he’s trying to say, “Well, what about this over here? We should include that also.” And I’m saying that was already included. You don’t get to then add another two or $3,000 to this, okay. Or now he wants my client to make certain guarantees of about certain things relating to his employment and my position is, no, we already have an agreement. You don’t get to go back and add things now. It’s not how this works, okay. If you come to an agreement, all right, especially if you sign a memorandum of understanding or sometimes maybe you’ll just do it orally and you’ll record it, it is enforceable against you. So please keep that in mind.

Then once you’ve come to an agreement, it basically gets reduced to what’s called a marital settlement agreement and, at that point, you guys are ready to be finally divorced. It’ll go before a judge and from there the judge will process your divorce and that’ll be it. The key is that it’ll be something that you agreed to, all right. It doesn’t mean you’re necessarily going to love every part of it. Remember, this is a divorce, there’s a lot of give and take in a divorce, but it does mean that at least you’ve been able to fashion it, all right. So here’s the thing. Mediations are a really, really important tool because they save a lot of time. I could do a mediation shortly after we start the case but if I want to do a trial it’s going to take me two years to get in front of a judge, which means it’s also saving you a lot of money. You want to pay an attorney to do two years’ worth of work or do you want to pay him to do a few months’ worth of work? Yeah, you’re going to pay a mediator too. You and your spouse will be expected to split the fees, but that’s going to be a lot less than paying an attorney more work than he should be doing.
I’ll tell you something else, and this is something I do a lot. Often you can actually do a mediation without a mediator. There are times where I’ll just call the other attorney and say, “Look, I spoke with my client. Why don’t you speak with yours? It seems we’re pretty close here.” Or, “Why don’t we just do a four-way Zoom or something like that?” And we’ll spend an hour or two together and see if we can just hammer these issues out. Guess what? That actually works a lot. That saves a lot of people a lot of time and a lot of money.

Now, unfortunately, sometimes you do get these adversaries who I think want to work the case up more and sometimes for good reason but also sometimes I think just to bill out more and that’s not very common, but it does happen. Sometimes there has to be an exchange of more information. You’ll probably want to exchange what’s called a case information statement, which really kind of spells out your financial status, all right and maybe participate in some limited amount of discovery in order that everybody goes into the mediation understanding what what’s on the table, understanding what everybody has and doesn’t have, okay. So that happens too, but on balance mediations are going to save you a ton of time, a ton of heartache, a ton of angst, and I think a ton of money and they are probably appropriate in the vast, vast majority of cases. Like I said, even if you don’t want to do one, the court’s going to send you to do it anyway, so you might as well do it on your own terms sooner rather than later, again, after you have an appropriate course of discovery, after you have what you think you need in order to do it intelligently, all right.

So that’s what a mediation is, on balance. It’s basically a party and his attorney meeting with the other party and their attorney, again, everyone should have their own attorneys, in front of a third-party neutral who’s also an attorney, who just get down together and they just spend time discussing the issues and seeing what agreements they can reach, trading this off for that sometimes, other times just trying to prevail on the other side to see that you’re right and they’re wrong. But, again, it’s more about really coming to an agreement than it is proving how smart you are and how right you are, especially when you’re dealing with two experienced attorneys who most of us can hit pretty close to the mark and we give our clients good advice.

So anyway, guys, that’s what a mediation is in a nutshell, I’ll do arbitrations next. Those are a very misunderstood tool. I like them a lot. I’ll explain why in the next video I do. Until then, guys, if you have any questions about mediations or you’d like me to represent you in a mediation or if you have any questions about any other part of the divorce process, give me a call, check out some of my other videos I have, which you can see on my page here. And I’m always happy to do a free consultation if you like. All right, guys, best of luck. Take care.