Mediation has been an effective alternative to litigation for divorcing couples in New Jersey for many years. The fact that more people do not take advantage of the opportunity to avoid the costly, time consuming and emotionally draining experience that litigation presents by choosing to mediate is unfortunate. Aside from the far greater control over the outcome and cost that mediation offers, it also provides the spouses with a far less contentious, far more civil and more “hands on” option to create a solution at far less cost.
I have been practicing family law in New Jersey for more than 43 years. I have been mediating family law disputes for the past approximately 20 years. In my experience, litigation often turns a couple who have decided to divorce into bitter enemies who can no longer maintain even a remotely civil relationship post divorce. A skilled mediator can help the couple create a satisfactory resolution of the issues at a fraction of the cost of litigation. Mediation allows the parties to have control over the process and to fashion a solution which works for them. Litigation forces the couple to release that control to a judge who is usually unable to have the detailed knowledge of what is best for the couple and, at best, is constrained by case and statutory law in fashioning a solution. A couple who chooses to mediate has far more flexibility to devise a plan that works for them.
All of the counties in New Jersey have mediation programs to which litigants who have not settled after several Case Management Conferences, perhaps one or more Motions, sometimes extensive discovery and presentation of the case to an Early Settlement Panel, are sent before going to trial. Referral to Court ordered mediation usually takes place months and significant expense after one of them has filed a Complaint for Divorce. Alternatively, a couple who elects to mediate, prior to commencing litigation, and is able to reach an agreement by which they resolve the issues in dispute, can usually be divorced within months. The obvious question is, if you are going to be sent to a mediator after many months and dollars have been spent, why not mediate before beginning the “battle”? At worst, if pre-litigation mediation is unsuccessful, either spouse can then file a Complaint and proceed with a potentially more narrow range of issues to deal with in the litigation.
In short, there is very little downside to choosing mediation, and very little upside to commencing litigation, first. There are, of course, emergent situations which require litigation–such as to avoid dissipation of assets, to protect one of the spouses from domestic violence, to establish temporary support if a spouse is unwilling to voluntarily provide it. If, however, those issues do not exist in your case, mediation should be the first option which you consider.
About the author: Steven R. Rubenstein, Esq. is a founding Partner of Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Steve’s practice is focused exclusively on divorce and matrimonial matters and he has handled thousands of divorce cases in his forty-one year legal career. In addition, Steve is a certified divorce mediator and is a founding member of the New Jersey Collaborative Law Group.
