May 22, 2012 By

What are the Differences between Divorce Mediation, Arbitration, and Traditional Divorce?

If your marriage is coming to an end, New Jersey provides you with options as far as the process of dissolution. Many divorcing couples today choose mediation, arbitration, or combine one of those processes with traditional divorce. You can approach each method with our without hiring an attorney. The process that is right for you depends on your relationship with your spouse, your financial situation, your interest in negotiating rather than litigating (going to trial), and the complexity of issues involved. The following paragraphs consider control (who makes the final decision), privacy, and cost.

Who makes the final decision, privacy, and other issues

In successful divorce mediation, you and your spouse choose a mediator to help as you make all decisions regarding division of property and alimony/support. You and your spouse decide what the rules will be as your proceed. The meetings with you, your spouse, and the mediator conclude when you have worked out a divorce agreement. You and your spouse may consult with divorce attorneys during or at the conclusion of the process. Either party can discontinue mediation at any time and refuse to sign any agreement. If both spouses sign a divorce agreement, the family court judge will typically approve it quickly, and it will become part of the divorce judgment. If the divorce involves children, the court will take your wishes into consideration when determining custody and child support. Mediation is usually substantially less expensive than a litigated divorce. Mediation is a private, closed process. The records are not public.

In divorce arbitration, you and your spouse will choose an arbitrator to decide on the terms of your divorce, including division of property and debt, alimony/spousal support, and child support. You may select a professional with special expertise in an area of concern, such as tax law or special needs child support, or simply choose an arbitrator you feel comfortable with. You decide whether the decision of the arbitrator will be binding. The arbitrator will examine the facts and listen to each of you present your case, and then make a decision. If you agreed on binding arbitration, you will not have the right to appeal the decision, although the court will review child support and child custody issues if requested. Divorce arbitration is considered a less difficult and expensive process than traditional divorce. Arbitration is a private, closed process. Records are not public.

In traditional divorce, one spouse files a complaint for divorce. The court then sets a schedule of appearances. Each spouse will independently decide whether to hire counsel. If you hire a lawyer for your divorce, you will have little direct communication with the judge—your attorney will handle most statements. Your attorney and you’re your spouse/spouse’s lawyer will charge fees for all time spent preparing for or discussing the case. If no agreement is negotiated, the case is litigated in court. Court records are public, the terms of the divorce are decided by whichever judge hears the case, and attorney fees may be considerably higher than in a mediated or arbitrated divorce.

Contact us or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Divorce, Divorce Mediation Tagged With: , , , , , , , , , , , , , , , , , , , ,
May 22, 2012 By

Factors to Consider When Choosing a Divorce Mediator

By pursuing divorce mediation, you are taking an important step toward resolving issues in the most financially and emotionally economical manner. When you approach the court with property, child support and custody agreements you have worked out yourself, you have maintained control of your future and that of your children. The judge is very likely to approve your agreement and include its terms in the final divorce settlement.

Now, what factors should you consider when choosing a divorce mediator? And where can you look?

When you contact a divorce mediator, be prepare to discuss the following points:

Credentials. You should feel very comfortable asking for a clear explanation of a divorce mediator’s credentials. New Jersey does not require family law and divorce mediators to be licensed or certified. It does have certain training and supervised experience requirements for mediators working in court-approved settings. Training requirements can be met through a relevant advanced degree or by completing a course approved by the court. Experience can fulfill part of training requirements. Professional mediation associations may base membership and referral requirements on the state standard. Has the mediator been appointed to the matrimonial roster maintained by the New Jersey Administrative Office of the Courts?

Personality and style. You and your spouse have to feel comfortable with the mediator’s style. Will you feel more comfortable with someone who simply facilitates your discussion, or are you looking for someone to give direct instructions? Will you feel safe and comfortable discussing sensitive issues with this person? You and your spouse may each want to meet with the mediator to get a first take on compatibility. The divorce mediator should not be offended if you decide to work with another person.

Experience and reputation. Ask how long the mediator has been in practice and how many divorce he or she has handled in the last two years. Ask about results— what percentage of mediations were successful, and how many couples ended up litigating their cases. (An average rate of successful mediated resolutions would be in the 65-80 percent range.) Is the mediator willing to provide references? Have any complaints been filed with the courts or professional mediation associations? Does the mediator train or mentor newer members of the profession?

Cost. Fees should be clearly stated. The mediator who charges the lowest rate will not necessarily be the most economical choice, but there should be no question about the billing structure.

Does the mediator work with attorneys? Some mediators suggest clients have respective divorce lawyers review their final agreement.

The number of meetings necessary to reach an agreement will depend on the complexity of your issues and the distance you and your spouse have to cover to meet at a common ground. A skillful divorce mediator will guide you as you set aside painful personal issues and focus on the business at hand: preserving the maximum marital estate, developing an agreement the court will approve as fair, and if there are children, providing the best possible outcome from their perspective.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Divorce, Divorce Mediation Tagged With: , , , , , , , , , , , , , , , ,