Thursday, January 17, 2013

What is the role of mediation in a New Jersey divorce?


When parties decide to get divorced, litigation can involve significant time, expense and the stress of multiple court proceedings.  As an alternative to attending numerous court proceedings, many divorcing couples voluntarily elect to participate in mediation.  In other cases, the court orders the parties to participate in mediation as a way to promote settlement and reduce the burden on the overly stressed court system.

Mediation is a process by which divorcing parties meet with an unbiased, third party mediator in an attempt to reach a settlement of pending divorce issues, such as the division of assets and debts.  Sometimes, the parties’ attorneys attend the mediation and other times the parties attend mediation without their respective attorneys.  The role of the mediator is to help the parties talk freely about pending issues and reach an agreement.  However, there are limitations to the process, and sometimes the settlement talks unravel.



In the published New Jersey case, Lehr v.Afflitto, Husband and Wife were divorcing in New Jersey.  After attending a Matrimonial Early Settlement Panel, where the parties appear before a panel of experienced family law attorneys who try to help the parties reach a settlement, the parties were ordered to attend mediation.  As part of the order to attend mediation, it was clear that under NJ R. 1:40-4, the mediation proceedings were to remain confidential and could not be used as evidence in a later trial if the parties could not reach a settlement.  At the end of the parties’ second mediation session, the mediator sent the parties’ attorneys a letter outlining thirteen pending issues upon which there was an agreement.  The letter also stated that it was the mediator’s understanding that Wife’s attorney would draft a Property Settlement Agreement (“PSA”), incorporating the various issues.  Furthermore, the letter noted that there were at least three pending issues that were not finalized.

A few days later and before either attorney drafted a PSA, Husband decided that he did not agree to the terms as the mediator had outlined them.  When Wife went to court to enforce the terms as outlined in the mediator’s letter, she prevailed and the court found that the agreement was enforceable.  Then Husband appealed, and he argued that a binding settlement had not been reached, which meant that there was no agreement to enforce.  The case continued to wind its way through the court system and was subject to additional appeals. 

Ultimately, the appellate court found that the following issues were important: (1) under R. 1:40-4, the mediator should not have been allowed to testify at trial and (2) that without the mediator’s testimony, the evidence was not clear that both parties thought that they had an agreement.

What does all of this mean for you if you are going through a divorce and using mediation?

  • It is important to understand the limitations of mediation.  Mediation is a great tool for helping parties to reach a settlement outside of the court system.  An unbiased mediator can help the parties each voice their respective concerns and help the parties reach a fair, middle-ground as a compromise.  That said, a mediator cannot force the parties to reach an agreement.  If, at the end of the mediation session, one or both of the parties is not happy with the results or does not want to reach an agreement, the mediator cannot force the parties to reach an agreement.  Furthermore, the mediator cannot, as is discussed in Lehr, then go to a later court proceeding to testify about what the parties did or said during the mediation session.

  • When attending a mediation session, it is important for both parties to understand the rules and expectations from the outset.  At the end of the mediation session, both parties should clarify whether or not they think they have an agreement.  For example, the parties should understand whether they have an agreement right then and there, or whether the agreement is not final until the terms are incorporated into a PSA and signed by both parties.  Additionally, the parties should be abundantly clear on whether a PSA is being drafted, by whom and what terms it will include.

In short, when participating in mediation, you should be clear on exactly what the rules are and what your expectations are.  If you are unsure whether the terms of any settlement reached during the mediation are going to be incorporated into a PSA before being binding, you should ask your attorney and/or your mediator.  The mediation process will be more effective and successful if both you and your spouse understand the expectations and limitations of mediation before entering the process.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

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