Historical Background: Attorneys are trained in law school to advocate for the position taken
by their client. They are prohibited from representing both sides to a
matrimonial dispute. Before September of 1971, very few attorneys in this
State and this County were "divorce attorneys". Divorces were
few and far between. "Litigants" sought out the attorney known
to be the roughest, toughest and most aggressive they could find. The
most successful attorneys prior to 1971 generally took a "slash and
burn" approach to divorce "litigation"- the style of lawyering
in vogue at the time, and the preferred way to go. Each attorney sought
to "paint" the opposing party as bad and their client as good.
The best attorneys shielded away from divorce practice and the marketplace
rewarded the attorneys who shouted the loudest.
In September 1971, the divorce laws in this State changed and New Jersey
became one of the earlier adopters of modern divorce practice. It was
now possible to be divorced on "no fault" grounds, without the
need to allege "extreme cruelty" or other fault grounds for
divorce. The New Jersey Supreme Court first reviewed the new divorce laws
in a series of three cases:Painter, Rothman and Chalmers, decided simultaneously by the New Jersey Supreme Court in 1974. These
cases conclude that generally it serves no useful purpose to find out
"who started it" and who committed the first wrong in the series
of events leading to the divorce. Rather, the Court's focus when resolving
financial issues should be on achieving a fair and equitable result in
light of all the circumstances, the needs of the parties and their children
and the ability of each party to contribute to their own needs, their
children's needs and the needs of the other party.
These changes provided the setting for utilization of alternative methods
to resolve family disputes. Mediation was the first "Alternate Dispute
Resolution" process. August Landi is thought to be the first attorney
in this State providing Mediation services- starting in 1975. While one
attorney can not "represent" both parties to a divorce, the
thought was that one person, an attorney, serving as a "mediator"
could help the disputing parties come to terms on the issues in controversy
that were preventing them from settling their case. Some mediators are
"naturals" in this role; some not so much, even after training.
How it works: Both parties set up a meeting with a "mediator". They discuss
with the mediator how mediation sessions will be conducted. At mediation
sessions, income, assets and debts are identified and brought to mediation.
The mediator assists the parties in taking a practical and fair approach
to determine how income, assets, debts and the children should be shared.
The mediator does not "tell" the parties what to do, but empowers
them to arrive at their own conclusions. Mediation sessions are private
and non-binding. Positions taken at mediation can not be disclosed to
the Court, nor is anyone legally bound by the positions discussed at mediation.
The mediator is precluded from serving as the attorney for their party.
This would be a conflict of interest.
The Road Map: Once the parties and the mediator believe agreement is reached, the mediator
prepares a "Memorandum of Understanding" for the parties to
review with separate and independent counsel. Often this document is modified
so as to become a formal binding Marital Settlement Agreement, suitable
for filing with the Court. The "divorce" can then proceed uncontested
with the parties MSA serving as the road-map for the family's future.
The MSA- the road map for the family's future- is accepted by the
Court at the time of the uncontested divorce and becomes part of the Order
and Judgment of the Court- with the parties under Court Order to comply
with the terms of their Agreement to the same extent as though the Court
had crafted the terms of the Agreement after a full "trial on the
Power Equivalency: Mediation does not work properly where the parties bargain from an unequal
bargaining position, and the mediator is not able to right the imbalance.
Where one party simply gives up, caves in or is bullied into "settlement"-
or where one party feels so guilty because of marital faults that they
are unable to stand up for a fair resolution, the Mediation has not served
its intended purpose. Where the mediator is unable to create a power equivalency
for the parties, setting up a level settlement ground, mediation should
be brought to a halt.
Mediation is based on the premises that couples are in the best position
to resolve their own issues, with a minimum of outside involvement. By
working together with the mediator, they understand why the settlement
reached. Hands-on involvement leading to settlement is more likely to
provide a stable platform post-divorce. Contested litigation is avoided.
Mediation fees are modest when compared to legal fees in a contested case.
Mediation should not be attempted in the context of family domestic violence.
Each party should be on an equal footing when it comes to representing
the position they take. Where there has been intimidation in the marriage,
or one partner feels guilty as the result of a past act, an unequal power
relationship likely exists- this power inequality prevents achievement
of a fair and neutral result.
Is mediation right for you and your family? Only if you have a reasonable belief that you and your spouse will be
able to sit down with a mediator and rationally focus on discussing and
conciliating differences. This is difficult to achieve where one of the
marital partners has not accepted the divorce and is not "emotionally
divorced." In such circumstances it may be best to wait several months
for emotions to sort out.
The first meeting should be a get acquainted meeting where the pluses and
minuses of mediation are discussed in detail. Since 1975 it has been our
practice never to charge for this first meeting. Attorneys representing
the parties generally do not attend mediation sessions where the parties
on their own seek mediation. If consulted or retained before mediation
begins, attorneys remain on stand-by; generally waiting to review the
document generated through mediation that memorialize the "agreement"
of the parties.
The Court rules provide for Mandatory Economic Mediation where cases remain
unsettled after five or so months. In such instances, attorneys for the
parties generally do attend the mediation. Although the dispute may appear
to be settled as mediation concludes after one or more sessions, the Court
will not enforce an "agreement" until reduced to writing, with
opportunity for a review by separate legal counsel, and then signed by
the parties. Only then will the Court generally regard the agreement reached
as "binding and enforceable".
Over the years, the Courts and the legislature have stepped in to help
regularize the mediation process. New Jersey's Uniform Mediation Act,
NJSA 2A:23C-1 to 13 became effective November 22, 2004. The "UMA"
creates a protected arena for mediation to take place, with a privilege
against disclosure of negotiations and communications that occur during
the mediation process; except in certain limited circumstances- (e.g.
where a crime is disclosed during mediation, or threats are made to commit
a crime or where issues of child abuse are raised.) New Jersey courts
support the mediation process:
"Courts have long recognized that public policy favors settlement
of legal disputes. (citing cases)."...
"Successful mediation, with its emphasis on conciliation, depends
on confidentiality perhaps more than any other form of Alternate Dispute
Resolution. (citing cases)"
"Confidentiality allows the parties participating to feel that they
may be open and honest among themselves... Without such assurances, disputants
may be unwilling to reveal relevant information and may be hesitant to
disclose potential accommodations that might appear to compromise the
positions they have taken. (citing cases)"
State v. Williams, 184 NJ 432, 446-448 (2005)
The Williams case exemplifies the Court's view that Mediation is a
valid and effective process to resolve disputes- one that should be protected
and fostered by the Courts.
cf Lehr v. Afflitto, 382 N.J. 376, 379 (App.Div.2006)
How many families choose to mediate their dispute? For decades following
1975 surprisingly few, given the benefits- probably less then ten percent.
Since the Court has mandated Economic Mediation for unsettled cases, mediation
has been adopted as mainstream by judges, attorneys and litigants. Acceptance
of Arbitration is now going through the same longitudinal process as occurred
Before the late 1980s the process was not generally understood; and at
a time of family crisis when legal counsel is sought, emotionally the
last thing anyone wants to do is sit down and work out differences. As
emotions relax, mediation becomes possible. Parties should invoke mediation
before they become so immeshed in the litigation process and confusing
advice they are receiving from family and friends that they become immobilized,
causing their dispute to become protracted and unresolved.
If Mediation is a viable option, this approach should be discussed with counsel.