By Lorraine M. Medeiros, Esq.
Once upon an era, Bob Dylan ominously belted “Times they are a changing.” That was never truer of the law then it is today. The law is changing my friends and those that refuse to change with it will go the way of the dinosaur. Within the last decade family law in particular began a much needed evolution, giving clients a chance to take control of their divorce process. Now, clients can opt out of the litigation track and hash out their divorce in the privacy of their chosen mediator’s office. Even the New Jersey Courts recognize the value mediation offers to those thinking about divorce. Prior to the filing of a divorce complaint in New Jersey, attorneys must inform their clients of the mediation option. Both attorney and client must submit a certification to the Court attesting that the mediation option was discussed. Still, many attorneys paint mediation negatively, forcing clients to believe litigation is the only way. So with the dawning of mediation versus litigation in the context of divorce, the question for clients is what’s your divorce style?
The question may seem simple but the answer is anything but simple. Let’s take a brief look at both processes to examine the pros and cons of each to help you decide what is right for you. Litigation is an adversarial process- it’s just the way divorce courts are set up. Plaintiff, defendant, Judge, and ordinarily two attorneys engage in a process of examining then dividing of assets, debts, and time with the children. If an agreement cannot be reached the parties head off to present their cases to the Judge resulting in hefty legal fees on both sides and resentment. Its husband versus wife and vice versa in a tug of war for marital property and sadly, in many cases, for the children.
My office handles many cases where the only issue before the Court is child custody and visitation. These cases never end well. Even if you “win,” the kids end up losing. Kids these days are more keenly aware of what goes on during their parents’ divorce and in the most zealously litigated divorces many kids blame themselves for the parents’ anger towards one another. However, the adversarial system evens the playing field for cases involving domestic violence, extreme cruelty, sexual abuse, and power imbalances between couples. The system regulates the divorce process for these clients and creates a type of stability, in my opinion, for them that mediation cannot.
Mediation, on the other hand, puts each client in the driver’s seat of their divorce. The buzz word here is: self-determination. Self-determination at its heart is a theory of motivation. Basically, we as human beings will choose a path that is intrinsically healthy and effective. In mediation, your mediator, who represents neither party, guides both parties along to jointly resolving the asset, debt, and custody questions in divorce. The parties work hands on in examining their issues and come to resolutions together- the parties accomplish something together and walk away feeling empowered. It’s not a therapy session but it is not a courtroom either. What mediation does offer is a safe, comfortable environment for two people to privately settle one of the most difficult times of their life on their own terms. The parties do not face the filing deadlines they would in the court and they can be as creative as they feel comfortable. Did I forget to mention that it is also much cheaper than litigation?
Mediation sounds pretty amazing, right? I am not only a proponent of mediation, I am a divorce mediator but I admit it’s not for everyone. Mediation involves work being done by the parties, as opposed to their attorneys in litigation, outside of their mediation sessions and cooperation with each other and the mediator. It involves compromise and being able to get past emotions to focus on the future. Not everyone is ready to let go of the past, or the pain, or is willing to compromise. Mediation should never be used as a vehicle to embarrass or harass anyone but that is the motivation for some. The key is to find an excellent divorce mediator that you feel comfortable with.
Each process comes along with its own unique set of pros and cons, which were briefly touched upon here. When facing divorce it’s important to think about is best for you and your family. Everyone has their own unique set of facts and deciding the litigation versus mediation question involves thoughtful consideration. So when considering your divorce style be informed of your options and remember no two divorces are like, so do what is best for you!