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Should I Mediate My Divorce?

Oct. 1, 2019

Divorce mediation is a method that spouses in New Jersey or Pennsylvania can employ to settle their differences in a divorce action. Mediation is a process in which an impartial third party, known as the mediator, facilitates a discussion between the parties with the goal of reaching an agreement regarding parenting time, equitable division of property, spousal support, child support, and any other issues involved in the divorce. Compared to litigating your issues in court, mediation has several advantages:

Mediation is Usually Lower Cost

Mediation takes place in an informal setting, with only the mediator being compensated during each session. While resolving all issues can take multiple sessions, resolving the same issues in court, with both parties represented by attorneys, can require formal pleadings, discovery, motions, oral arguments, plenary hearings, and full trials. The American Bar Association estimates that the cost of mediation is generally 40-60% lower than litigation. Even if both parties employ attorneys to review their agreement and file the appropriate documents with the court, mediation is often the most cost-effective option.

Mediation Allows You to Make Your Own Decisions

In court, decisions are made by a judge, who is constrained by laws and regulations regarding what decisions can be made. In mediation, parties are free to craft creative and personalized solutions, rather than the one-size-fits-all approach of the courts. In mediation, the parties are the ones who decide what’s fair, and nobody is forced into anything. The parties retain control over how their case is ultimately decided. Additionally, the parties can decide to keep their case private, unlike in court actions which are matters of public record.

Mediation is Generally Faster Than Litigation

Litigating a divorce through trial can take years. New Jersey and Pennsylvania Courts attempt to have divorce matters completed in one year, but many cases end up taking longer. By contrast, mediation matters are completed as soon as the parties agree, often in a matter of weeks or months.

Mediation is Often Less Stressful for Parties and Their Children

Litigation is adversarial, while mediation is cooperative. Most of the time, this results in less stress for all involved because parties feel in control of the process. In addition, there are often beneficial effects on the family’s children, who see their parents cooperating and working through their disagreements. Acrimonial litigation battles can often have negative effects on children who understand that their parents are fighting, sometimes for years at a time. By going through a cooperative, non-adversarial process, parents can set a good example for their children regarding how to resolve differences. In addition, mediation helps divorcing couples maintain a good relationship, with higher satisfaction rates than litigation.

In Some States, Mediation is Mandatory

In some states, such as New Jersey, parties are required to attend a required mediation session before going to trial. This means that either way, the parties are going to attempt to mediate their disputes. It’s just a question of when. Why not try mediation before spending thousands of dollars litigating the case?

Disadvantages of Mediation

The main disadvantage of mediation is that it relies on the cooperation of both parties. While it is almost always in both parties’ interests to cooperate and come to an amicable resolution, nobody can force parties to agree. This means that if the opposing party refuses to agree to a reasonable settlement, you may end up in court anyway, after going through the time and expense of mediation.

Another drawback of mediation is that there is no court oversight to ensure that an agreement is fair. There is no judge to decide who gets what, only the parties themselves (with the assistance of a mediator). Sometimes, this means that parties can feel pressured to agree to an unfair deal.

In mediation, there is no formal discovery process. Parties voluntarily exchange information, but it is informal and not compulsory. If a party withholds information, there is less of a chance that the information will be discovered.

Should You Mediate?

The short answer is “yes.” I recommend mediation to almost all of my divorce clients. If parties attempt mediation and it fails, they will have lost some time and money, but typically a small fraction of what it costs to litigate a case. In addition, most mediations reach a satisfactory resolution. The ABA estimates that mediation is successful 70 to 80% of the time, with higher rates of satisfaction and compliance, as compared to litigation.

The lack of court oversight and discovery can be mitigated by having a skilled attorney represent each litigant. An experienced family attorney can advise parties about the merits of any proposed agreement and offer recommendations regarding a settlement position. An attorney can also offer advice regarding what records are necessary to establish the parties’ income, assets, and other relevant factors.

I wholeheartedly recommend giving mediation a try if you have a divorce matter to resolve. If you are interested in mediating your divorce, contact Fenza Legal Services to schedule your free consultation.