Divorce: Litigation And The Mediation Alternative

Divorce is a time of changing financial arrangements and parenting responsibilities. Creative and flexible solutions are required to meet the new needs of all family members.

A traditional divorce involves the filing of a Complaint for Divorce in the Superior Court of New Jersey, Family Part. Once the complaint is filed, the parties engage in the discovery process which provides for disclosure of the assets, debts and earnings of the parties. Applications may be made to the court for temporary support, temporary custody or to compel the other party to produce discoverable information. The matter eventually is either settled by the attorneys on behalf of their clients or decided by a judge after a trial. The Divorce Judgment, whether as the result of settlement or judicial determination, must address custody and visitation issues, child support, spousal support and equitable distribution.

Divorce mediation is a method for divorcing couples to formulate their own solution to resolve the conflict. Mediation is different than arbitration. In arbitration, the parties agree to be bound by the decision of the arbitrator. In mediation, the couple does not agree to be bound by anything and unless the parties reach a voluntary agreement they can go forward with the traditional litigated case.

The mediator, a neutral professional, helps the couple to define the issues and communicate in an attempt to reach a satisfactory result.

In the mediation process the couple negotiates the agreement that will best serve all family members. The couple decides how to restructure one family unit into two family units, to share parenting responsibilities, to distribute property and to support the family members.

In the traditional system the decisions are resolved by attorneys and if negotiation fails, the case is litigated in front of a judge who makes a decision. The divorcing couple is not actively involved. Unfortunately, the process sometimes produces additional hostility among family members. The litigation process can be more expensive and time consuming than mediation.

The benefits to divorce mediation are that it:

  1. Provides a forum for the couple to resolve the parenting and financial issues;
  2. Enables the couple to retain control over the negotiation process; and
  3. Helps resolve the issues more quickly and less expensively than protracted litigation so the parties can go forward with their lives.
In divorce mediation the mediator works with the couple to explore the short-term and long-term goals of all family members. The mediator will assist in identifying issues and possible options for creative problem solving and exploring available choices. The couple actively participates in reaching a mutually satisfactory solution.

In addition to utilizing the services of a trained mediator, other professionals, including mental health professionals, accountants, tax experts and appraisers, are often consulted to help evaluate the assets and assist the couple in the process of divorcing.

Each spouse is encouraged to have an independent attorney to advise him/her on his/her legal rights and obligations. Although the couple still pays legal fees the attorney fee is often less expensive since the attorney is functioning as an advisor rather than as an adversary. Therefore, the agreement is reached in a shorter time, fewer legal procedures are utilized and the total cost of the divorce may be less. In the event an agreement is reached, the attorneys draft a formal agreement consistent with the couple's agreement which becomes a binding contract. The divorce can then proceed quickly through the courts.

Post-divorce litigation is less likely when the couple has formulated its own solution to the situation. Mediation is also available for post divorce disputes to meet the changing needs of the family members. Mediation is valuable in post-divorce conflicts including the modification of alimony, child support and visitation to meet these changing needs.

Mediation is a positive alternative for couples who have a mutual desire to resolve the many issues involved in the divorce process as quickly, inexpensively and constructively as possible.

An initial consultation with an attorney/mediator will help determine which process is most appropriate.

Judith Knopf is an experienced matrimonial attorney, a former member of the New Jersey State Supreme Court Family Practice committee, and a qualified mediator pursuant to New Jersey Court Rule 1:40 et seq.