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NEGOTIATION & MEDIATION IN NEW JERSEY
TABLE OF CONTENTS
TABLE OF CONTENTS
DISPUTE RESOLUTION ALTERNATIVES
When it comes to divorce, there are a number of alternatives to traditional litigation. The following statements are taken verbatim from the notice that must be reviewed by every person filing for divorce in the State of New Jersey, pursuant to the Rules of Court. [R. 5:4-2(h).] While information is set forth below on a broad range of subjects, this section of the MNJD Divorce Guide focuses on negotiation and mediation.
Mediation. Mediation is a way of resolving differences with the help of a trained, independent third party. The parties, with or without lawyers, are brought together by the mediator in a neutral setting. A mediator does not represent either side and does not offer legal advice. Parties are encouraged to hire a lawyer to advise them of their rights during the mediation process. The mediator helps the parties identify the issues, gather the information they need to make informed decisions, and communicate so that they can find a solution agreeable to both. Mediation is designed to assist with settling court cases in an informal, cooperative manner. The court maintains a roster of approved mediators or private non-roster mediation services also are available. The judge will make the final determination as to whether to grant the divorce or dissolution.
Arbitration. If arbitration is selected, the parties will waive their right to having the court decide the issues that will be resolved in arbitration. In this process, an independent third party decides issues in a case. The parties select and hire the arbitrator and agree on which issues the arbitrator will decide. The arbitrator’s decision is binding and final. While an arbitrator may decide some issues, the judge will make the final decision to grant the divorce or dissolution.
Collaborative Law Process. The collaborative law process allows parties represented by lawyers to work together to resolve disputes without court involvement. The parties and their lawyers meet and, as needed, consult with experts who are not lawyers but are professionals in their fields. These experts may include certified financial planners, certified public accountants, licensed clinical social workers, psychologists, licensed professional counselors, licensed marriage and family therapists, and psychiatrists. All participants understand and agree that this process is intended to replace traditional divorce or dissolution proceedings. The parties further understand the collaborative law process will end if either party files a divorce or dissolution complaint. Upon termination of the collaborative law process, the parties are not permitted to hire any lawyers or law firms that represented them in that process for purposes of the divorce or dissolution.
Use of Professionals. As part of or in addition to the methods described above, parties in a divorce or dissolution matter may seek the assistance of skilled professionals to help resolve issues. These professionals may help the parties resolve all or some of the issues in the case. While this approach may resolve some issues, the judge will make the final decision to grant the divorce or dissolution
Combination of Alternatives. Depending on your circumstances, it may be helpful for you to use a combination of mediation, arbitration, collaborative law and/or skilled professionals to resolve issues in your divorce or dissolution matter.
Conclusion. Just as every relationship is unique, every divorce or dissolution is unique. The specific circumstances of your case determine what methods are best suited to resolve your issues. You are encouraged to ask your lawyer about whether mediation, arbitration, collaborative law or the use of professionals may assist you in resolving issues in your divorce or dissolution
Negotiation is an informal process and typically occurs behind the scenes.
EFFECT OF SETTLEMENT OFFERS IN NEGOTIATION
Notably, settlement offers and conduct in settlement negotiations, while not strictly confidential, cannot be used “to prove liability for, or invalidity of, or amount of the disputed claim.” [N.J.R.E. 408.]
Such evidence, however, “shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations.” [N.J.R.E. 408.]
TIMING OF NEGOTIATIONS
I have listed negotiation and mediation as the third step in the divorce process, but in truth, negotiations should be occurring from day one. In fact, it’s possible to have resolved the entire case before a Complaint for Divorce is ever filed with the Court.
NEGOTIATING WITHOUT INFORMATION
It can be difficult, however, to resolve the issues without confirming basic information. While the parties in a New Jersey divorce can waive discovery (i.e., the information gathering process), you should generally confirm basic information, including historical incomes and the existence/value of significant assets like the marital home and investment accounts. Coming to an agreement without complete information runs the serious risk of overlooking information that would have affected the outcome.
The strategy of negotiation is a complex topic, and skill as a negotiator is built up, like anything else, through diligent study and frequent practice. If you’re interested in learning more about the topic, the following books might help you down that path:
- Getting to Yes: Negotiating Agreement Without Giving In – Roger Fisher;
- Bargaining for Advantage: Negotiating Strategies for Reasonable People – G. Richard Shell;
- Getting Past No: Negotiating in Difficult Situations – William Ury;
- Never Split the Difference: Negotiating As If Your Life Depended On It – Chris Voss & Tahl Raz; and
- Crucial Conversation: Tools for Talking When Stakes Are High – Kerry Patterson.
As stated above, mediation is a way of resolving differences with the help of a trained, independent third party. The parties, with or without lawyers, are brought together by the mediator in a neutral setting. A mediator does not represent either side and does not offer legal advice. Parties are encouraged to hire a lawyer to advise them of their rights during the mediation process. The mediator helps the parties identify the issues, gather the information they need to make informed decisions, and communicate so that they can find a solution agreeable to both. Mediation is designed to assist with settling court cases in an informal, cooperative manner. The court maintains a roster of approved mediators or private non-roster mediation services also are available. The judge will make the final determination as to whether to grant the divorce or dissolution.
Mediation can occur privately at any time agreed upon by the parties, or it can occur through the Court.
COURT-MANDATED MEDIATION/SETTLEMENT EVENTS
Custody & Parenting Time Mediation. Custody and parenting time mediation is mandatory under the Rules of Court.
“In family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5. During the mediation process, the parties shall not be required to participate in custody evaluations with any expert. The parties may, however, agree to do so. The mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. As set forth in R. 5:8-6, the court, on good cause shown, may extend the time period. The date for conclusion of mediation shall be set forth in any Case Management Order(s). If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family, the financial ability of the party to pay alimony or support or both, and the parties’ homes, which shall be limited to a factual description of the home where the child will reside or visit, appropriate child safety precautions in the home, number of household members and their relationship to the child, and criminal record checks for both parties.” [R. 5:8-1.]
Custody and parenting time mediation is a process in which an impartial third party, called a mediator, assists parents in reaching agreements having to do with custody and parenting time disputes. It provides parties with an opportunity to actively make decisions and to develop a parenting plan acceptable to both parents.
When a complaint for custody and parenting time is initially filed, it may be screened and found to be an appropriate case for mediation. The Court will schedule a date on which you and your spouse must appear and attempt to resolve the issues of custody and parenting time. Depending on the county in which your divorce was filed, custody and parenting time mediation may occur either with or without attorneys present. Typically, it occurs without attorneys present. The program is completely free of charge, and the goal is to help the parties reach a mutually acceptable agreement regarding custody and parenting time.
Critically, the mediation process is confidential, and while the mediator may make suggestions, he or she does not communicate those suggestions to the Court or make any decisions about your case. The mediator’s sole purpose is, if possible, to help you and your spouse come to an agreement. Only an agreement between you and your spouse or a decision from the Court can resolve custody and parenting time.
Economic Mediation. If the parties cannot resolve their financial disputes, the Court may require them to attend economic mediation. The parties are required to attend mediation with an economic mediator who has been trained and approved in accordance with procedures established by the Court. The mediator’s focus is resolving any remaining economic disputes, such as child support, alimony, and dividing property. You may present written statements to the mediator that communicate your positions on the economic issues and the reasons for them as well as copies of your Case Information Statements. Again, the mediator does not make any decisions relating to your case, cannot communicate his or her beliefs to the Court, and the process is confidential. The first two hours of the mediator’s time, which may include reviewing written submissions prior to conducting the actual mediation, is generally free of charge.
Early Settlement Panel. During Early Settlement Panel (often called “ESP”), the parties are summoned to Court and referred to a panel of two or three local attorneys. The panel of attorneys will review any written submissions, listen to the arguments from the parties or their attorneys, and provide a non-binding recommendation as to how the issues should be resolved based on their experience. Attorneys volunteer to serve as panelists for ESP to help resolve cases. They are neutral third parties, much like mediators, but the process is not mediation and therefore is not confidential. Nevertheless, because you are given access to knowledgeable outside opinions, ESP can be extremely helpful in resolving cases and breaking through longstanding roadblocks in negotiations.
Intensive Settlement Conference. During an Intensive Settlement Conference (often called an “ISC”), the parties are once again summoned to the Court. This time, however, there is no panel. Instead, an ISC is an extended conference between the parties and their attorneys designed to resolve the issues. The attorneys will also meet privately with the Judge for guidance on the issues. Any guidance offered by the Court is non-binding and provided based on incomplete information. That said, it is often a strong predictor of how the Court would decide the issues if fully presented at trial. The ISC process can, and often does, take all day.
LENGTH OF MEDIATION
Some matters get resolved in as little as one hour while others may take longer. Certain counties in New Jersey schedule mediation appointments in three-hour blocks of time, and three hours is generally a reasonable expectation. There are, however, instances when mediation takes an entire day, and in unusual circumstances, it may take several days to reach an agreement.
COSTS OF MEDIATION
The costs of private mediation typically include the hourly rate of the mediator, and if attorneys are present, then the hourly rates of the attorneys as well. The costs can be divided between the parties in any manner they deem appropriate. Typical arrangements include a 50/50 split of the costs or a division in proportion to each party’s income.
Mediation events through the Court are generally free, with certain exceptions. Custody and parenting time mediation is always free, but only the first two hours of economic mediation are free. Early Settlement Panel and Intensive Settlement Conference, while not technically mediation events, are also free.
CONFIDENTIALITY OF MEDIATION
Your communications during mediation are privileged. They are not subject to discovery, and they are not admissible into evidence unless you have waived that privilege.
Under the Rules of Evidence:
“(a) N.J.S. 2A:23C-4 provides:
- Except as otherwise provided in section 6 of P.L. 2004, c. 157 (N.J.S. 2A:23C-6), a mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5 of P.L. 2004, c. 157 (N.J.S. 2A:23C-5).
- In a proceeding, the following privileges shall apply:
(1) a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
(3) a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
- Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.” [N.J.R.E. 519.]
A waiver of the privilege may occur as follows:
“(b) N.J.S. 2A:23C-5 provides:
a. A privilege under section 4 of P.L. 2004, c. 157 (N.J.S. 2A:23C-4) may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.” [N.J.R.E. 519.]
Additionally, “b. A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L. 2004, c. 157 (N.J.S. 2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.” [N.J.R.E. 519.]
There are also exceptions to the privilege identified by statute, which are as follows:
“There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) for a mediation communication that is:
(1) in an agreement evidenced by a record signed by all parties to the agreement;
(2) made during a session of a mediation that is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury or commit a crime;
(4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(5) sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;
(6) except as otherwise provided in subsection c., sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(7) sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Child Protection and Permanency in the Department of Children and Families is a party, unless the Division of Child Protection and Permanency participates in the mediation.” [N.J.S.A. 2A:23C-6.]
ENFORCING AGREEMENT REACHED AT MEDIATION
Previously, agreements reached at mediation were enforceable whether oral or written (like agreements reached outside of mediation), but that is no longer the case. In 2013, the New Jersey Supreme Court held as follows: “To be clear, going forward, parties that intend to enforce a settlement reached at mediation must execute a signed written agreement.” [Willingboro Mall v. 240/242 Franklin Ave., 215 N.J. 242 (2013).]
Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.
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