When a marriage or civil union has reached the end of the road, a common question we are asked is whether the parties should go through mediation to reach a resolution prior to filing a complaint. Mediation is a process where the parties agree to submit their dispute to a neutral third party who tries to help the parties bridge their positions and reach an amicable resolution. Mediators, in the family law context, are typically family law attorneys, accountants or mental health professionals.
In New Jersey divorces, all parties are required to submit to both custody and economic mediation as a part of the divorce process. Custody mediation occurs at the courthouse with a court mediator; attorneys are not involved in that process. Economic mediation occurs if the parties have not settled their economic issues after appearing at the Early Settlement Panel and is done outside the courthouse, typically with attorneys present. However, these two mediation events occur only after a complaint for divorce or dissolution of a civil union is filed.
What options are available prior to filing a complaint? Many believe mediation is a good option. However, it is not the best option for many people. Typically, people try mediation before meeting with an attorney. This can create power issues with the higher earning spouse trying to convince their spouse to accept a settlement less favorable than they are entitled to. Depending on the mediator, this may result in the lower earning spouse agreeing to something that is inappropriate under the circumstances. In addition, there is usually no financial disclosure and, therefore, people are being asked to reach an agreement without knowing all of the facts.
We recommend meeting with an attorney before you engage in any pre-complaint settlement discussions, whether it be mediation or direct negotiation. The source of many post-judgment disputes are people who entered into agreements, through mediation or otherwise, without sufficient legal counsel.