Divorce is a challenging and emotional process, but alternative dispute resolution methods like mediation and arbitration offer opportunities to resolve issues outside of the courtroom. In New Jersey, many couples are encouraged—or even required by the court—to attempt resolution through these methods as an alternative to trial.
While both mediation and arbitration can help reduce the cost, time, and stress associated with divorce, they serve different purposes and involve distinct procedures.
The Role of Mediation in a New Jersey Divorce
Mediation is commonly used in New Jersey divorce cases. It is a confidential process in which divorcing parties work with a neutral third party mediator to negotiate and reach mutual agreement on issues such as property division, spousal support, and child custody and parenting time. Agreement then becomes part of the divorce decree.
The mediator, who may be an attorney, mental health professional, forensic accountant, or other trained professional, does not take sides or make decisions for the couple. They cannot give legal advice. Instead, their role is to facilitate constructive communication, identify key issues to resolve, and guide the parties toward a realistic solution that works for both sides.
Mediation can be voluntary in situations where both parties are open to cooperation and wish to avoid the adversarial nature of court proceedings. It can also be court-ordered.
When Is Mediation Court-Ordered?
New Jersey courts often require mediation in specific circumstances. For example, if parents cannot agree on child custody or parenting time, they may be required to participate in a parenting mediation program offered by the court. This free service is designed to help parents reach a workable parenting plan without resorting to a courtroom battle.
In cases involving property division or alimony, the court may order parties to attend economic mediation. This would typically occur in contested divorce cases when agreement cannot be reached after early settlement panel (ESP) review, which provides non-binding settlement recommendations.
Benefits of Mediation
Here are benefits of using mediation to resolve divorce issues:
- Cost-effectiveness: Mediation is typically less costly than arbitration or going to trial.
- Confidentiality: The process is private, unlike court proceedings, which are part of the public record.
- Faster resolution: When mediation is successful, divorce cases can resolve more quickly than through litigation.
- Greater control: The spouses who are divorcing, and not a judge, make the final decisions.
- Less adversarial: Mediation promotes cooperative problem-solving and may help preserve a more amicable relationship, especially important when children are involved.
Mediation is especially beneficial for couples who are willing to negotiate in good faith and want to maintain control over the terms of their divorce.
The Role of Arbitration in Divorce
Arbitration is less common than mediation in New Jersey divorce cases, but it may be used when couples want a final decision made without the delays and publicity of going to court. It can also be another step to avoid trial if mediation has failed. Unlike mediation, arbitration is more formal and resembles a court trial in several ways but takes place outside the courtroom.
In arbitration, a neutral third party arbitrator, who is chosen by the spouses to decide their case, hears evidence and arguments from both sides and then issues a decision. Arbitrators are typically family law attorneys or retired judges. Their decisions can be binding (final and enforceable like a court order) or non-binding, depending on the terms agreed to by the parties before arbitration begins.
Common situations where arbitration might be appropriate include:
- Disputes over complex financial matters, such as valuation of business assets or division of high-net-worth portfolios
- Cases where one or both parties want a quicker, private resolution rather than prolonged litigation.
- Contentious custody disputes where parties agree in advance to allow an arbitrator to decide parenting issues
Arbitration decisions involving children’s issues are generally subject to court review to ensure the decision serves the best interests of the child.
Arbitration Agreements and Procedure
Before arbitration can proceed, the parties must sign an arbitration agreement outlining the scope of the arbitrator’s authority, the process, and whether the decision will be binding. This agreement typically includes:
- The issues to be decided
- Rules of procedure
- Confidentiality provisions
- Timeframes and deadlines
- Payment terms for the arbitrator’s services
Once the arbitration process begins, each side presents their case through documents, testimony, and legal argument. The arbitrator then deliberates and issues a written decision. If the arbitration is binding, that decision can be converted into a court order, enforceable just like a judge’s ruling.
Like mediation, arbitration is private and confidential. It can also result in a faster resolution to divorce than going to trial.
Choosing the Right Method: Mediation or Arbitration?
Whether mediation or arbitration is appropriate depends on the nature of the dispute, the level of cooperation between the parties, and the desired outcome.
- Choose mediation if you and your spouse are willing to communicate and compromise. Mediation is ideal for crafting personalized solutions and preserving long-term relationships, especially when children are involved.
- Choose arbitration if you need a neutral third party to make a final decision but want to avoid the time, expense, and public nature of court. Arbitration may be suitable for cases involving financial complexity or when litigation seems inevitable but privacy is a priority.
Some cases benefit from a combination of these processes. For instance, divorcing spouses may mediate to resolve parenting issues but arbitrate financial disputes. Both mediation and arbitration can offer valuable alternatives to traditional litigation. However, sometimes marital relationships do not lend themselves to either of these methods and divorce issues can only be resolved at trial. Your divorce attorney can help you understand which method, if either, may be right for your situation.
Speak to an Experienced New Jersey Attorney for Help With Your Divorce
Mediation and arbitration can be effective tools in navigating divorce outside of the courtroom. If you’re wondering whether one of these methods may work for your particular situation, reach out to [MFR] Men’s & Fathers’ Rights Divorce Lawyers to arrange a confidential consultation by calling (201) 880-9770. Our experienced New Jersey family lawyers will help you weigh your choices and pursue the path that aligns with your circumstances and goals.
