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Mediation 101: A Guide To Mediation for Divorce, Child Custody & Family Law in New Jersey

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Looking for a low conflict way of getting divorced or negotiating child custody? Then Mediation 101: An introduction to New Jersey Divorce Mediation, Child Custody Mediation and Family Law Mediation is for you.
Find out how a family law or divorce mediator can help you resolve your situation amicably and leaving everyone in a positive place for your bright new future!
You want to separate or work out what is best for your kids in a constructive, positive way without the fighting or the bad feelings towards your ex. Find out why conscious uncoupling, divorce mediation, collaborative divorce and other low conflict resolution methods are positive ways of resolving your family law matter.

#mediation #divorcemediation #mediationchildcustody

Published in: Law
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Mediation 101: A Guide To Mediation for Divorce, Child Custody & Family Law in New Jersey

  1. 1. Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany Mediation 101: An Introduction to New Jersey Divorce Mediation HOW CAN WE USE MEDIATION TO KEEP OUR DIVORCE OUT OF COURT? TM
  2. 2. 2 MEDIATION 101: NEW JERSEY DIVORCE DISCLAIMER This presentation contains general information and does not constitute legal advice. Be sure to direct specific questions about your own situation to an attorney.
  3. 3. MEDIATION 101: NEW JERSEY DIVORCE • What is Mediation? • Why Use Private Mediation for Divorce? • How Do We Choose a Mediator? • How Does the Divorce Mediation Process Work? • What if Problems Come Up After Mediation? 3
  4. 4. WHAT IS MEDIATION?
  5. 5. MEDIATION 101: WHAT IS MEDIATION? Mediation: An Alternative to Court • Mediation is a process wherein a neutral third party, known as a mediator, helps people negotiate solutions to a conflict. • The mediator does not make decisions for parties the way a judge would, but rather helps the parties create their own solutions. • Mediation has become popular as a less stressful and often faster and less expensive alternative to courtroom litigation. For this reason it is known as an alternative dispute resolution (ADR) process. 5
  6. 6. MEDIATION 101: WHAT IS MEDIATION? Private Versus Court-Ordered Mediation • This presentation deals primarily with private mediation in New Jersey divorce cases. • Using private mediation in your divorce often means that you can keep your case out of court entirely. • If you file a case in New Jersey family court, you may be required to participate in one or more court-ordered mediation processes as part of your overall court case, including the following: 6
  7. 7. MEDIATION 101: WHAT IS MEDIATION? Court-Ordered Mediation for Parenting Time Disputes in New Jersey Family Court The court sends most cases involving custody or parenting time issues to parenting mediation: • Each parent proposes a parenting plan. • If parents do not reach agreement, the case is put on a priority track. 7 Court-Ordered Mediation for Parenting Time Disputes in New Jersey Family Court
  8. 8. MEDIATION 101: WHAT IS MEDIATION? Court-Ordered Mediation for Financial Issues in New Jersey Family Court To settle financial issues, such as: • property division • alimony, or • child support the court might order you to participate in economic mediation. 8 Court-Ordered Mediation for Financial Issues in New Jersey Family Court
  9. 9. PRIVATE DIVORCE MEDIATION: An Alternative to Family Court
  10. 10. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Why Choose Private Divorce Mediation? • Divorce is stressful and litigation often increases the stress. • Divorce mediation can reduce conflict and decrease the stress on everyone in the family. • Mediation is confidential and can keep your private family matters out of the public record. • Additional potential benefits include increased control over the process and the results, and decreased costs. LET’S TAKE A CLOSER LOOK AT THE BENEFITS: 10
  11. 11. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Benefits of Private Divorce Mediation The Process Reduces Conflict • Mediation provides a safe and confidential setting. • The mediation format allows both spouses an opportunity to fully express their wants and needs, reducing frustration and fostering a more peaceful and collaborative environment. • A skillful and compassionate mediator can help divorcing couples develop a civil relationship and negotiate and separate peacefully. 11
  12. 12. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Maintaining privacy can be especially important in family law disputes, where the details of a case tend to be highly personal in nature. Couples who choose to have a judge decide their divorce issues must litigate in open court, where the proceedings become part of the public record. 12 Benefits of Private Divorce Mediation The Parties Retain Confidentiality
  13. 13. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Mediation is a flexible process: • Parties can choose a casual or more formal tone. • Parties can set their own dates and choose their own pace. Litigation, by way of contrast, is very rigid: • Proceedings are always formal and rule-bound. • Parties are at the mercy of court procedures, calendars, and deadlines The Parties Control the Process 13 Benefits of Private Divorce Mediation
  14. 14. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? • Family law mediators do not make decisions for divorcing spouses the way a judge does; instead, they help the spouses clarify issues, identify the most critical points, and negotiate mutually acceptable solutions. • Decisions made in mediation are not binding until each spouse signs a final agreement. • Because couples who mediate tend to be more satisfied with their results, they are often more likely to follow through with their agreements. 14 Benefits of Private Divorce Mediation The Parties Control the Results
  15. 15. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? The time it takes to mediate a case varies depending on factors such as the preferred pace of the parties and the number and complexity of issues, but it is almost always a more rapid process than litigation: • Divorce mediation in New Jersey takes an average of about three to six months. Some simple cases can be finished in less than three months. • Litigation typically takes at least a year and often up to two years. Some complicated cases drag on for longer than two years. The Process Tends to Save Time 15 Benefits of Private Divorce Mediation
  16. 16. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Family law mediators usually charge hourly rates similar to attorneys’ hourly rates, but the cost to each spouse is much lower because the spouses share the mediator’s fee. While it is a good idea for each spouse to also have a consulting attorney available, the attorneys will not have to spend time preparing for or appearing in court. 16 Benefits of Private Divorce Mediation The Process Tends to Save Money
  17. 17. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? Mediation helps parents preserve or improve upon the cooperative relationship essential to co-parenting. Reduces Future Conflicts Even if serious parenting disagreements arise in the future, parents can often resolve them by returning to mediation. Protects Children Emotionally Watching parents argue is hard on children and often makes them feel pressured to choose sides, potentially causing emotional turmoil. Builds Communication Skills Parents who reach agreements on parenting matters in mediation often learn valuable skills that can help them resolve future disagreements. Improves Co-Parenting 17 Benefits of Private Divorce Mediation The Process Protects Children
  18. 18. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? A mediator can encourage full financial disclosure and help you use financial experts efficiently. POST-DIVORCE ISSUES After your divorce is final, a mediator can help you resolve post-divorce issues such as changes in financial support or parenting arrangements. SMALLER CASES A mediator can facilitate a fair division of household contents without expensive court involvement. PARENTING DISPUTES A mediator can help you preserve your co-parenting relationship and explore amicable resolutions that address children’s best interests. FINANCIALLY COMPLEX CASES 18 Is Mediation Right for Your Case? Mediation can address a wide variety of situations.
  19. 19. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? CATEGORY 3: THE MOST DIFFICULT CASES TO RESOLVE: Serious roadblocks are impeding effective communication. CATEGORY 1: THE EASIEST CASES TO RESOLVE Parties communicate well and are on the same page regarding most issues. ARE YOU GOOD CANDIDATES FOR MEDIATION? CATEGORY 2: THE MORE TYPICAL CASES Parties can communicate, but not necessarily easily, and there are significant areas of disagreement. How well can you communicate with each other? Three categories of divorcing couples: 19
  20. 20. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? • Are relatively amicable. Couples who are ready to finalize a settlement or who need to negotiate one or two minor issues first. 20 • Are both self-supporting, or agree on amount and duration of support. • Agree on the timing of the divorce. • Agree on a parenting plan, if children are involved. Category 1 The first type of couple for whom mediation is usually successful:
  21. 21. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? • Have some significant areas of disagreement. 21 • Can control levels of anger or mistrust. • Can communicate civilly, in spite of some tension. Couples who need more help but are still likely to reach a successful settlement through mediation. Category 2 The second type of couple for whom mediation is usually successful:
  22. 22. MEDIATION 101: WHY CHOOSE PRIVATE DIVORCE MEDIATION? • Lack of financial trust. 22 • Problems with drug or alcohol abuse. • Abusive tendencies or poorly controlled anger. • Severe parental alienation or threats to kidnap children. Couples with serious roadblocks to resolution. Category 3 The type of couple for whom mediation is less likely to succeed:
  23. 23. HOW DO WE CHOOSE A DIVORCE MEDIATOR?
  24. 24. MEDIATION 101: CHOOSING A MEDIATOR A divorce mediator is a neutral 3rd party who helps divorcing spouses make decisions on issues in their divorce, such as: • Property distribution, • Child custody, and • Child or spousal support. A divorce mediator is not a judge and does not make decisions for the parties: • The mediator facilitates an exchange of proposals from each party and ensures a respectful and collaborative atmosphere. Choosing a Divorce Mediator What is a Divorce Mediator? 24
  25. 25. MEDIATION 101: CHOOSING A MEDIATOR At a minimum, find a mediator who has completed a 40 hour court-approved course covering: • Basic mediation skills, • Family and child development, • Basic family law, and • Divorce procedures. Interview two or three mediators to ensure a good personality fit. A mediator who is also an experienced family law attorney can provide accurate information about applicable family law. 25 Choosing a Divorce Mediator What Qualifications Should We Look For?
  26. 26. MEDIATION 101: CHOOSING A MEDIATOR Ask your prospective mediator questions about: • Background, training, and specific mediation experience. • Fees and what the fees include. • Preparation and filing of the divorce papers. • The estimated number of sessions for your type of situation. • How long each session will generally last. • Whether you are likely to need experts in your case. • Whether the mediator will prepare a summary after each session. • Preparation of a Memorandum of Understanding (MOU) and Marital Settlement Agreement (MSA). 26 Choosing a Divorce Mediator What Questions Should We Ask?
  27. 27. HOW DOES THE MEDIATION PROCESS WORK?
  28. 28. MEDIATION 101: HOW DOES THE PROCESS WORK? • If you do not reach agreement on all issues in mediation, either spouse can proceed to court. • Mediation is also an option even after a divorce is finalized, for addressing any post-divorce issues. YOU CONTROL WHEN TO FILE FOR DIVORCE • Many couples choose to begin mediation before either spouse files for divorce, but the process can also begin after filing. Filing for Divorce in Mediation • You can choose to begin mediation at any point in the divorce process, for any or all issues. Who Files for Divorce, and When? 28
  29. 29. MEDIATION 101: HOW DOES THE PROCESS WORK? The mediator will set ground rules at the outset of the process, covering things like: • Speaking without interruptions by the other party. • Maintaining courtesy and refraining from personal attacks and inflammatory language. • Confidentiality. • Logistics such as location of restrooms and timing of breaks. • Rules for separate caucuses with the mediator. 29 What Happens During Mediation Are There Rules for the Mediation Sessions?
  30. 30. MEDIATION 101: HOW DOES THE PROCESS WORK? • The mediator guides you in negotiations, helping you talk directly to each other and come up with your own solutions to issues. • Each of you shares complete financial information. • Brainstorming: An open exchange of ideas fosters creative options. • Depending on your issues, you may obtain outside expert opinions. • The mediator prepares a Memorandum of Understanding (MOU) encompassing all of your agreements. 30 What Happens During Mediation Are There Rules for the Mediation Sessions?
  31. 31. MEDIATION 101: HOW DOES THE PROCESS WORK? Ensures appropriate data collection and addresses potential tax consequences. VOCATIONAL EXPERT FORENSIC ACCOUNTANT BUSINESS VALUATOR OR APPRAISOR USING FINANCIAL EXPERTS IN COMPLEX MEDIATION PENSION APPRAISOR/ACTUARY Specializes in analyzing business values and income streams. Investigates hidden income/assets/liabilities and/or asset dissipation. PROPERTY APPRAISOR FINANCIAL SPECIALIST 31 Gives opinions on value of property like real estate, artwork, or jewelry. Uses statistical analysis to project the future value of a pension. Provides information about available jobs that fit education and experience.
  32. 32. Using a Child Specialist in Mediation • A licensed mental health professional with training in child development and family systems can review proposed parenting plans in light of the best interests of the children. • Choose someone with experience working with parenting issues common to family reorganization. 32 MEDIATION 101: HOW DOES THE PROCESS WORK?
  33. 33. Using Attorneys in Mediation • You still need a lawyer unless you choose to represent yourselves. • The mediator does not represent either party and is limited to giving legal information rather than advice. 33 MEDIATION 101: HOW DOES THE PROCESS WORK?
  34. 34. MEDIATION 101: HOW DOES THE PROCESS WORK? Can We Both Use the Same Attorney? Many people choosing mediation think that since they are so amicable it makes sense for them to try to save money by using the same attorney, but this is not possible: Regardless of how agreeable you are, you still have different and sometimes opposing legal rights and interests. It is a conflict of interest for an attorney to represent two people with opposing interests. 34
  35. 35. MEDIATION 101: HOW DOES THE PROCESS WORK? • If necessary, you can bring attorneys into the mediation for help with one or more issues. • Generally the attorneys you hire for mediation will be consulting attorneys, not attorneys providing full-scale representation. • If you have a fairly simple case, you might need attorneys just to finalize your MSA. How do we save money if we have to hire a mediator and two attorneys? • If you have a more complex case, you may want to consult attorneys early in the process. 35
  36. 36. MEDIATION 101: HOW DOES THE PROCESS WORK? The Memorandum of Understanding Putting Your Agreements into Writing • At the conclusion of your mediation, your mediator will prepare an MOU summarizing all of the agreements reached in mediation and outlining any tasks each party needs to complete. • Generally the MOU is not binding. • Usually one party takes the MOU to an attorney to draft the terms into a formal MSA. • The other party has an independent attorney review the MSA. 36
  37. 37. MEDIATION 101: HOW DOES THE PROCESS WORK? The Marital Settlement Agreement Putting Your Agreements into Writing • The MSA is the formal legal document you both sign and then file with the court. • Your MSA will include all of the agreements you and your spouse have made and serves to resolve all issues in your divorce. • MSA’s are also sometimes called “Property Settlement Agreements,” but for couples with children, the MSA includes terms regarding child custody and support as well as property distribution and other financial matters. 37
  38. 38. MEDIATION 101: HOW DOES THE PROCESS WORK? What if we can’t agree on everything? • If you are unable to resolve all of your issues, you retain the option of proceeding to court. • Even removing one or two issues from a case often substantially reduces both the time and the costs necessary to resolve a case. 37
  39. 39. MEDIATION 101: HOW DOES THE PROCESS WORK? Do We Need a Court Hearing to Finalize Our Divorce? • This depends on what county you are in. • You will still have to complete paperwork for a no-fault New Jersey divorce. • If neither of you has filed a complaint for divorce prior to mediation, you can file your complaint at the same time you file your MSA. • In some counties, you will still need to attend a brief court hearing to finalize the divorce. • In other counties, you can complete the paperwork to finalize the divorce without a hearing. 39
  40. 40. WHAT IF PROBLEMS COME UP AFTER OUR DIVORCE IS FINAL?
  41. 41. MEDIATION 101: POST DIVORCE MODIFICATIONS Post Divorce Modifications What if things change after your divorce is final? Child custody and child support orders can be modified until children are emancipated (deemed to be independent). Alimony is modifiable under certain conditions, unless your MSA clearly states that it is not. All modifications require a substantial change in circumstances. 41
  42. 42. MEDIATION 101: POST DIVORCE MODIFICATIONS Post Divorce Modifications Amending or Enforcing Your MSA: The majority of post-divorce issues occur when one party fails to carry out the terms of the MSA. Your MSA can include an agreement that before either of you files a motion to enforce your terms in court, you will return to mediation to attempt to resolve the issue. 42
  43. 43. Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany DO YOU HAVE OTHER QUESTIONS? CALL US: (888) 888-0919 EMAIL US: info@weinbergerlawgroup.com
  44. 44. Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany WeinbergerLawGroup.com (888) 888-0919 S C H E D UL E A F R E E CO NF ID E NT IA L CO NS ULTAT IO N CO N TAC T U S TM

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