All aspects of a divorce can be mediated. Custody, parenting time, support, and distribution of property are all subjects for mediation. It can be an alternative to litigation or a method used in conjunction with litigation to help the parties negotiate their settlement face-to-face by having a meeting of the minds rather than a court decision.
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Both parties must want to address their issues in mediation as an effort to resolve them. Mediation can cost less, but not necessarily.
Full disclosure is necessary, whether by formal discovery or provided voluntarily. Some formal discovery tools in litigation are interrogatories, notices to produce, and requests for admissions. There are deadlines. It is structured in order to get the most complete information. Mediation does not use these tools, but the parties will need the same information. It can take more or less time.
If one party suspects less than full disclosure, mediation may not work. If there is fear and distrust and spite, which often is present in divorce, mediation may not work. These emotions can hinder the parties’ ability to think clearly. In these circumstances litigation is required to guide the case through the divorce process in a planned, scheduled sequence of steps.
Mediation succeeds with full disclosure of evidence and recognition by each of the parties that they will have to face compromises. The parties themselves will have to hammer out the terms of their agreement. The positive aspects are that no third party is deciding the terms of the divorce. Most divorces, however, settle whether it is through litigation or mediation.
The parties can mediate with or without counsel present. The mediator does not provide legal advice. Good faith disclosure of information is necessary. The parties may need experts and these neutral experts must be paid for by the parties. The mediator will usually prepare a memorandum of understanding reflecting the terms the parties have agreed to. This document should be reviewed by the parties’ attorneys and put into a property settlement agreement (PSA).
New Jersey attorney Tanya Helfand is a mediator. Her office, Helfand & Associates, is located in Morris County in Whippany, New Jersey. Helfand & Associates is fully prepared to offer our clients mediation, litigation, and collaborative divorce methods as resolutions to matrimonial conflict.