Divorce Mediation in New Jersey - Pro's & Con's

April 29, 2011

The idea of Divorce Mediation as a tool to resolving disputes between parties less expensively than through litigation is to be applauded and supported. But the problem with Divorce Mediation ( at least in New Jersey) focuses on the qualifications of the person holding herself out as the mediator.

By way of background, the idea of divorce mediation is that both parties meet together with an agreed upon individual, who holds himself out as having a specific skill set to guide parties through the various questions that would normally be presented by either or both parties in a divorce setting and he makes recommendations to them on how to resolve those issues for purposes of preparing a formal divorce settlement agreement. For mediation to be successful, both parties need to approach the process by putting their faith in the qualifications of the mediator and in the competence of his recommendations.

On its face, the idea of attempting to resolve any and all marital dispute in a less litigious forum is a good thing to be lauded. But when parties put their faith in someone holding himself out as a divorce mediator, how would / could they know his qualifications for the position? Unfortunately, anyone can take a 1/ 2 day course on divorce mediation and then hang out a shingle; representing himself to the world as a "qualified" divorce mediator. In reality, he is not qualified and would have no idea what a judge would do if the particular issue was presented for a resolution. Therein lies the rub.

When parties appear for mediation, their plan is to try to resolve issues outstanding in a peaceful fashion....but to do so, they also need to know what would happen if that issue was presented to the court and the court was forced to resolve it. Without knowing their "downside" and their respective "exposure", how can they know if their position is reasonable or not?

Unfortunately, too often today family law attorneys are reviewing proposed divorce settlement agreements prepared by ill experienced mediators, where the terms violate applicable case law ( which translates into a setting where the provision would be viewed by the court as "void per se" under NJ law if challenged at a later date) and / or border on being unconscionable.

In the past several months alone, I have reviewed at least 3 such proposed divorce settlement agreements where I was forced to advise the consultation that the document presented was a mine field with more potential problems then actual solutions. As examples, in two such documents, the mediator incorporated an automatic escalator provision for support; which term is viewed in NJ as "void per se"... which means that if one party is forced to file an application with the court for enforcement of that provision, the NJ Court will not enforce same.

Similarly, in a 3rd such proposed agreement, the wife was being asked to accept a alimony plan for a lesser duration and for a dramatically lesser amount then what she receive if the issue was presented to the court.In response, this woman was shocked, indicating that her husband told her and the mediator that they would never settle unless she agreed to take an alimony deal less then "permanent" and at an amount that he was willing to pay. When asked what her understanding was of what she would have been entitled to by way of alimony, if presented to the court, she candidly stated that she had no idea nor could the mediator provide her with any guidance as to what she would receive by way of alimony if the issue went before the court. What!

To place my concern about the last example in its proper perspective, the setting presented was where the parties had been married for about 19 years and the Husband's current income setting ( as well as his income setting over the past several years) ran about 340,000.00 per annum and the Wife had not worked for the past 13 years. Prior thereto, the Wife worked in a clerical capacity earning less then 20,000.00 per annum. Similarly, Wife had limited computer skills and a limited educational background ( and she had stopped working to raise the parties 2 children). Yet with this fact pattern, the proposed form of divorce settlement agreement provided Wife with a "limited" duration alimony plan for 10 years ( which would put Wife at age 51 when the support terminates) and 24,000.00 per annum of alimony during that duration ( with the expectation that Wife could return to full time employment earning about 25,000.00 per annum).

Translated.... based on her work background, etc and Husband's income setting ( and being 43 years old), that proposal bordered on being "unconscionable" and I could not fathom this women doing this "badly" on her alimony claim if this issue was presented to the court for a resolution. In fact, based on the facts presented, it was clear to me that this was and is a "permanent alimony" matter and that the proper range for her alimony award should have been between 75,000.00 per annum ( on the low side) and around 105,000.00 per annum the high side ( with the decision on the actual annual amount between those 2 numbers focused on the actual life style while the parties lived together, the spending pattern of the marriage, the saving and investment plan of the marriage, and consideration of the other statutory factors required to be considered). Somehow, despite pressing the mediator for guidance as to what she would be entitled to if presented to the court, the mediator continually told her that it was impossible for him to provide guidance or to give her a range since such decisions are purely discretionary with each judge. Wrong! What this mediator was really saying is that he has no idea what a judge would do since he had no / limited experience with the family court system.

Simply stated, the divorce mediation process works and can be beneficial as long as the mediator is properly trained and has the requisite skill set to provide proper guidance to the parties as to what is fair and permissible and what is outside the range of reasonableness. In selecting a mediator, it is therefore essential to ask questions of the mediator as to his background and qualifications for the particular type of issues that will be presented in your matter.