Family Mediation is a confidential and voluntary process where couples who are separating or divorcing are helped by a mediator to develop solutions to their problems by themselves. These problems may include: (i) custody and visitation of the couple’s children, (ii) the amount and type of financial support for which each party may be responsible, (iii) the division of property between the parties; and (iv) any other issues that have arisen in the course of the couple working out the ground rules for their new living situation.
A mediator does not decide these issues as a judge or an arbitrator might. The mediator is neutral and does not advocate the position of one spouse or another. Rather, a mediator helps a couple to establish a fair process by which they can discuss these issues rationally and with a minimum of conflict. A mediator may also suggest techniques by which other couples faced with similar issues have resolved their problems and can help the parties work towards a fair compromise.
A mediator is not a marriage counselor and does not try to help the couple get back together. Parties should engage in mediation only after they have determined that their relationship should end.
Mediation is not for everyone. It requires the willing participation of both parties on an equal footing. Each party must be committed to working things out fairly for everyone concerned. Each party must be willing to make certain that everyone has equal access to information concerning the family finances and other matters. Each party must be willing to listen to the other – even if they do not agree with what they hear. For this reason situations involving domestic violence, drug or alcohol addiction or the mental incapacity of one party are poor candidates for mediation.
As a general matter, lawyers are not present during mediation sessions and do not communicate with the mediator. However, at the end of the mediation, the mediator will prepare a document setting down the agreements that the parties have reached. This document is called a Memorandum of Understanding. In some instances, a mediator may prepare a more formal draft Property Settlement Agreement. The parties then consult with attorneys who review the document prepared by the mediator and advise their respective clients as to their rights regarding the agreement they have reached. These attorneys are called Review Attorneys. In addition, one or both parties may wish to retain their own attorney during the mediation process. This attorney should have a good understanding of and a commitment to the mediation process and should function as a “coach”. These attorneys are sometimes referred to as “mediation Counselors”. After they have reviewed the document prepared by the mediator and have advised their clients, the attorneys take the necessary actions for the couple to obtain an uncontested divorce from the Court.
Because Mediation is tailored to each situation it is difficult to predict with certainty how long the process will take. However, after an initial planning session, the parties usually meet for two-hour sessions every other week. While a mediation can end after two or three sessions, depending on the complexity of the issues presented, the process can require between eight to twelve sessions in some cases, and possibly more than that.
Mediators usually charge by the hour at the same rate as attorneys. Payment is usually made at the time of the session and is paid by either one or both of the parties, as they agree. In addition, Mediators may also charge a fee for the preparation of a Memorandum of Understanding or a draft Property Settlement Agreement, either on an hourly basis or a flat rate, depending on the circumstances.
Mediation is often less expensive than attorneys’ fees incurred in traditional divorce proceedings. The parties pay one mediator instead of two attorneys and do not have to prepare papers or engage in costly arguments before a court as to discovery and procedural issues. Mediation also is often less expensive then traditional divorce proceedings because the parties are cooperating with one another and not constantly fighting in court.
One of the benefits of mediation is that it allows parties to avoid legal fees. When parties use the mediation process to develop a settlement plan, they usually they do not bring lawyers into the mediation sessions. Nor are parties to a mediation legally required to use the services of an attorney at any time. However, because a mediator is a neutral third party who neither provides legal advice to nor protects the interests of the parties, it still is important that a party to mediation consider working with a “Mediation Review Attorney” who is on their side. In some cases, where a party does not feel comfortable participating in mediation sessions alone, a Mediation Review Attorney may provide support to the client by accompanying him or her to the mediation itself and participating in a manner that supports the mediation process. The other party and the mediator must agree to the lawyer’s participation in the mediation sessions.
When mediation is completed, the mediator will prepare either a “Memorandum of Understanding” (“MOU”) or a draft Marital Settlement Agreement (“MSA”). The MOU is a narrative memo that outlines the circumstances of the parties, identifies the terms to which they have agreed in mediation and explains how those terms were reached. The MSA is the formal Settlement Agreement that will be attached to the parties’ Final Judgment of Divorce and which will control all of their legal rights and responsibilities.
A Mediation Review Attorney will review the MSA or MOU and counsel the client as to whether and to what extent, the terms agreed to by the parties differ from what might be expected to have happened in court if the parties had not reached agreement in mediation. This will allow the client to make an informed decision as to whether to accept the terms reached in mediation. If the mediator has prepared an MOU, the Review Attorney also will draft the formal Marital Settlement Agreement and may negotiate the final form of that agreement with the other party’s attorney. A good Mediation Review Attorney understands the value of mediation and compromise and will not try to talk the client out of accepting the terms of the agreement, provided that the client understands what compromises he or she has made. Usually, once a final Marital Settlement Agreement is signed, the Review Attorney will prepare the divorce papers to be filed with the court and will represent the party through the finalization of the divorce.
In addition to Mediation Review services, clients also may benefit from “Mediation Coaching” by an attorney. Before mediation begins, the attorney and client will discuss the client’s potential rights and responsibilities under a strict application of New Jersey law so that the client will enter the mediation process being able to identify what compromises are being proposed in the mediation. The Mediation Coach may also assist the client in developing a post-divorce life-plan, including the preparation of projected budgets and income. The Mediation Coach and the client may also develop a plan for approaching the issues in mediation from the outset. During the mediation process, the Mediation Coach and the client may consult between sessions to develop strategies for overcoming impasses, or to consider alternative methods of allowing both parties to reach their goals. Once the parties have completed the mediation process, the attorney will provide Attorney Review services as well.
a) Divorce Litigation – Custody, Parenting Time, Alimony, Child Support, Equitable Marital Distribution of Assets and Debts;
b) Post Judgment Litigation – Modification or Enforcement of Existing Judgment or Orders
c) Pre- Litigation Settlement Negotiations – Legal representation of one party in negotiating a Marital Settlement Agreement before a complaint for divorce is filed in Court.
a) Mediation for Separation and Divorce – As Mediator
b) Mediation of Post Judgment Disputes – As Mediator
c) Mediation Review – As attorney for one party
d) Mediation Coaching – As attorney for one Party
A process in which specially trained attorneys, financial experts and mental health professionals work together with divorcing families in a mutually supportive team environment designed to avoid involving the court system, and in which the common goal is to assist families in planning for life after divorce in as healthy and constructive a manner as possible.
Attorney, Michael R. Magaril