Mediation, Arbitration & Alternate Dispute Resolution
Divorce-Dispute Resolution Alternatives to Conventional Litigation
[Text Promulgated 12/04/06 as Approved by the Supreme Court]
Resolving issues concerning your divorce can be costly and difficult. While only a judge can actually grant a divorce, division of your property and your debts, alimony, child support, custody and parenting time are some of the other issues that may need to be resolved. A judge can decide all issues at trial. However, there are other ways to resolve many of the issues in your divorce. These alternate dispute resolution methods offer greater privacy than resolving the issues in a public trial. They also may be faster and less expensive, and may reduce the level of conflict between you and your spouse during your divorce. You are encouraged to discuss alternative dispute resolution with your lawyer to decide whether these alternate methods may help you and your spouse resolve as many of the issues relating to your divorce as possible before the matter is presented to the judge.
What follows are short descriptions of various forms of alternate dispute resolution that may be used in divorce cases.
Mediation is a means of resolving differences with the help of a trained, impartial 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 retain an attorney to advise them of their rights during the mediation process. The mediator helps the parties identify the issues, gathers the information they need to make informed decisions, and communicates so that they can find a resolution agreeable to both. Mediation is designed to facilitate settlements in an informal, non-adversarial manner. The court maintains a roster of approved mediators or you can use private mediation services. The judge would still make the final determination as to whether to grant the divorce.
Download our Divorce Mediation Guide for more information and resources to help you understand the benefits of mediation and how divorce mediation works.
In an arbitration proceeding, an impartial third party decides issues in a case. The parties select the arbitrator and agree on which issues the arbitrator will decide. The parties also agree in advance whether the arbitrator’s decisions will be binding on them or instead treated merely as a recommendation. While an arbitrator may decide issues within a divorce case, the judge would still make the final determination as to whether to grant the divorce.
Use of Professionals
Parties in a divorce may also seek the assistance of other skilled professionals to help resolve issues in a case, such as attorneys, accountants or other financial professionals, and various types of mental health professionals (e.g. psychiatrists, psychologists, social workers, therapists). These professionals may help the parties resolve all of the issues or just specific portions of the case. As with mediation and arbitration, parties making use of these professionals to resolve issues in the divorce are encouraged to consult their attorney for advice throughout this process. While this approach may resolve some issues in the case, the judge would still need to make the final decision to grant the divorce.
Combinations of Alternatives
Depending on your circumstances, it may be helpful for you to use a combination of mediation, arbitration and skilled professionals to resolve issues in your divorce.
Just as every marriage is unique, every divorce is unique as well. The specific circumstances of your divorce determine what method or methods of dispute resolution are best suited to resolve issues in your divorce. You are encouraged to ask your attorney about these alternative dispute resolution methods to resolve issues relating to your divorce.
Using these alternative dispute resolution methods allows you to participate in the decision on these issues, rather than leaving all of the issues to the judge to decide. And presenting the judge with a case in which the only decision remaining is whether to grant the divorce will permit that decision to be made more expeditiously. While the judge must be the one to decide whether to grant the divorce, your role in deciding some or all of the other issues can be enhanced through these alternative dispute resolution methods.
Given the complexities involved with divorce, we advise you to contact one of our experienced family law attorneys at 908-735-5161 at Gebhardt & Kiefer today. We handle all aspects of family law throughout New Jersey.
** Note: The adoption of Rule 5:4-2(h) and the promulgation of this descriptive material is in no way intended to indicate any change in the Court’s policy, grounded in statutes and court rules, against mediation in any matter in which a temporary or final restraining order has been entered pursuant to the Prevention of Domestic Violence Act.