New Jersey Divorce – Custody Mediation
by Curtis J. Romanowski, Esq.
NJ DIVORCE & CUSTODY MEDIATION is a process in which a trained mediator helps a couple to make family law related decisions such as child custody, support, alimony and equitable distribution, without court involvement. Rather than making decisions for the parties, the mediator helps them to make their own decisions with expert guidance. The result is more satisfying for the parties and generally produces more durable solutions than those achieved and ultimately imposed upon the parties through litigation.
New Jersey Divorce & Custody Mediation Advantages
A divorce or parenting mediation can be what the couples choose it to be. It is the mediator’s job to think of each family as unique and to help the couple sort out the needs of everyone involved, including the couple, their children, and even — at times — the grandparents.
The parties can resolve all issues that comprise the terms of a divorce or separation agreement at the mediation, or they can mediate a portion of their divorce or custody and parenting issues, leaving the remainder for their attorneys to sort out following the mediation.
Separation and divorce are among the most painful and disruptive events that an individual and family can experience. The problems are both financial and emotional, deeply touching all members of the family. One of the aims of mediation is to reduce this tension — not add to it. With the help of the mediator, couples negotiate their own settlement and learn the techniques for resolving future differences. Mediation is one of the ways separating or divorcing couples can retain control over the decisions affecting their lives, while keeping their children from getting caught in the middle.
Mediation is not just for couples who already know how to cooperate with one another. Successful mediators can show people how to work together productively, in spite of their anger, disappointment and differences.
During mediation other professional services are sometimes needed, such as those of accountants, lawyers, financial planners, career counselors, psychotherapists and child psychologists. Joint hiring of common experts is usually recommended.
Protection of Legal Rights
Before signing any legal papers, it is strongly advised that each party consult with his or her own attorney for review of the jointly developed decisions prior to signing the final documents. This attorney review, however, is far less expensive to the parties and can save considerable time and emotional turmoil.
If the parties want to consult with their respective attorneys during the mediation process, they are invited and encouraged to. If a party is uncertain as to his or her legal rights and feels more comfortable with an attorney’s advice, then independent legal consultation would be highly recommended. Although the focus is more on needs, interests, and concerns, at no time do mediators want their clients to feel they are giving up any of their rights.
New Jersey Divorce & Custody Mediation Costs
Most mediations cost about half of what a litigated uncontested divorce would cost. Contested divorces are of course considerably higher and could reach into the six figures. Mr. Romanowski employs his own fee structure, which involves a sliding scale dependent upon case complexity and other economic factors.
Although every case is unique, most cases involve about 6-15 hours of direct contact time in mediation. Office sessions are typically 1 1/2 hours in length.
Our aim in mediation is to resolve disputes by first bringing about a better understanding of the specifics of the actual conflict. It has been our experience that creative, mutually beneficial solutions are more readily achieved in contexts where parties are clear on their own needs and objectives, while understanding of each other’s perspectives, priorities, and concerns. We will always support our mediation clients in designing joint resolutions, reflective of their personal and economic interests.
Our philosophy includes the recognition that we serve clients with different needs, temperaments and levels of readiness. Our approach, therefore, is as flexible as the roles we assume in our mediation.
In the course of mediating to find positive collaborative solutions, feedback, coaching, mentoring and assessment can be used to mitigate unresolved conflicts and moderate conflict-encouraging behaviors. The role played by the mediator will vary, based on the nature of the conflict, the depth of emotion and the needs of the parties. Here are some roles we might employ within the course of a successful mediation:
- Advisor: Assisting each party in identifying their long-term self-interests, while clarifying goals and objectives.
- Chair: Creating an agenda and prioritizing concerns, as a way of reaching incremental agreements.
- Consultant: Considering whether a proposal for resolution represents the best approach, and recommending how to fit it into future plans.
- Contractor: Asking the parties to agree to abide by ground rules, and to contract with each other to implement them going forward.
- Counsellor: Carefully surfacing underlying emotions that prevent the parties from discussing their conflicts with each other or reaching agreement.
- Educator: Teaching what the conflict means and how it produces distrust, while answering any questions about the process that will be used to resolve it.
- Facilitator: Assisting in conducting joint meetings, negotiating agreements, and easing future communication processes and relationships.
- Healer: Encouraging parties to let the conflict go and moving each toward forgiveness and reconciliation.
- Historian: Recalling how the conflict felt before and after collaborative negotiation, and what each person did that could have been done better.
- Lawyer: Documenting agreements in writing and discussing what will happen if there are future conflicts.
- Negotiator: Supporting the parties in negotiating collaboratively with each other, perfecting offers, reframing objections, detaching people from problems, and separating positions from interests.
- Option Generator: Stimulating a search for creative options for resolution that recognize everyone’s self-interests.
- Power Balancer: Overcoming perceived and actual power imbalances that interfere with genuine agreement so that each person participates fully and collaboratively in negotiating solutions.
- Resource: Providing or securing expert opinion or access to it, clarifying factual disagreements, and searching for criteria to resolve them.
- Role Model: Creating increased commitment to congruent communication by listening, clarifying, summarizing, refocusing and acknowledging a party’s contributions.
- Rule-Maker: Establishing ground rules that increase both sides’ willingness to resolve their conflict.
By adopting a range of strategies and mixture of roles, it is possible for those in conflict to move closer to resolution. As a result, they may reach a deeper understanding of the reasons they became stuck in the first place.
Many mediators are attracted to the word “neutral” as a descriptive term for what they do and as the conceptual framework for their professional role. Most experienced mediators learn early on that the initial premise of remaining neutral — in the classic sense of that word — is actually quite self-defeating when faced with the realities of effectively managing conflicts.
Most mediators appreciate that — in order to develop the requisite level of trust with each party — they must engage and validate the perspective of each disputant. Some mediators actually resist validating a client’s thinking, fearing that the validation will be taken or understood by the other party as agreement or favoritism — anything but neutrality.
Many mediation strategies and techniques, while clearly useful, are nonetheless construed by clients as violating mediator neutrality. For example, the caucus — meeting with each party separately — can be precarious, especially for mediators who describe themselves as neutrals. Many fine mediators avoid caucusing altogether, and are highly critical of those mediators who do.
Although we agree that non-caucused meetings are preferable for any number of very good reasons, we are unwilling to eliminate any role or tool that might be helpful for a particular family.
In the classical sense of the term “neutral,” the mediator:
- will not intervene in the substance of the dispute;
- is indifferent to the welfare of the clients;
- will not attempt to alter perceived power balance variances;
- is disinterested in the outcome; and
- is unconcerned with the impact of the settlement on unrepresented parties.
We do not adhere to that classical framework.
Many people come to mediation with the preconceived notion that a mediator is or should be just like a judge or arbitrator. Therefore, they believe that if the mediator is neutral and disengaged, he or she will be more objective, rational, dispassionate and unbiased. Actually, the origins of the word “neutral” is from “neuter;” being neither active nor passive. The opposite of “neutral” is not “partial” or “partisan,” but rather, “involved” or “engaged.”
We insist on remaining involved and engaged with our clients and their issues.
Generally speaking, while parties in conflict may think they want a neutral, what they are really looking for is a third party who will hear and validate their concerns. Perhaps too many mediators seize upon neutrality as a role descriptor because the term is convenient and familiar.
We prefer to think of our approach to New Jersey Divorce and Custody Mediation as “balanced.” In contrast to the more static neutral mediator, who has no responsibility to protect either party, a balanced mediator has the responsibility to protect both parties.
In being balanced, the mediator has permission to question both parties about their negotiating perspectives and inquire about any circumstance or matter germane to an effective, resilient agreement. In short, a mediator is not bound by the traditional narrow role limitations of a neutral.
A lot of what we do involves asking deeply honest and empathetic questions in order to:
- clarify each side’s interests and desires;
- challenge their assumptions’ and
- increase their capacity for listening and problem solving.
In resolving conflict, it is useful to appreciate that:
- There can be more than one truthful “right answer” to experiential questions;
- Two different sets of facts can both be honestly stated and accepted as true for the person who experienced them;
- Unilateral declarations of truth and falsehood are not particularly useful in resolving conflicts; and
- The chances of convincing the other person to accept your version of why they are wrong are minimal.
What is most effective in a context of mediation, is for each side to take a risk, appreciate the other side’s experience as a source of improved perspective and increased awareness, add their own, and try to find what they have in common.
Role of Law and Lawyers in Mediation
Mediators tend to be divided in how they approach the role of law in mediation. Some rely heavily on what a court would decide if the case went to trial, authoritatively suggesting that law should be the controlling standard used to end the conflict. Other mediators, concerned that the parties might simply defer too readily to the law and miss the opportunity to find more creative decisions, keep the law out of the mediation.
In our approach to New Jersey Divorce and Custody Mediation, we welcome lawyers’ participation and include our own legal perspectives when warranted, but do not rely solely on the law. The importance the parties give to the law is up to them.
Our goals in this respect are
- to educate the parties about the law and possible legal outcomes and
- to support their freedom to fashion their own creative solutions, which may differ from what a court might decide.
In this way, the parties learn that they can reach agreements together that respond to both their individual interests and their common goals, while also being well informed about their legal rights and the judicial alternatives to a mediated settlement.
This approach to the law’s place in mediation draws upon lawyers’ knowledge and skills in ways both similar to and different from their traditional roles. To participate in this negotiated problem-solving approach to mediation requires many lawyers to shift from reliance on a stance of adversary advocacy to one of collaborative support.
For some lawyers, this problem-solving approach can pose a challenge — but a rewarding one. They are there to protect their clients and inform them about the legal alternatives, while also supporting their active participation and open dialogue.
They also participate in helping their clients design the mediation process and in coming up with creative solutions to their conflict that may be quite different from what a court might do.
We believe that in these ways, the lawyers and the mediation may better serve our clients.
Choosing a Mediator
In New Jersey, there are no legal restrictions preventing anyone from acting as mediator, nor is any license required. Any potential consumer of mediation services should therefore be careful to select a mediator who is right for them. Since the only mediators permitted to impart legal opinion or perspective into their divorce and custody mediations are New Jersey Lawyers, it is recommended that parties select an experienced New Jersey Matrimonial & Family Lawyer as their mediator.
If a non-attorney mediator is selected, the parties are each strongly advised to retain their own legal counsel, both before and during the mediation. Naturally, parties opting to use an attorney mediator can likewise retain independent counsel to advise them during the mediation process.
The role of the law in mediation is critical to the success of the process. What you should be looking for is a mediator who is well informed about the law or can work effectively with your lawyers to include the relevant legal information, and at the same time does not want the law to necessarily dictate the outcome.
Because there are many approaches to mediation, both parties should have a clear idea about what they need from a mediator. Here are some comments about mediation, arbitration and other ADR approaches to resolving your case with Romanowski Law Offices:
Orientation. Mr. Romanowski became a proponent-teacher of New Jersey Divorce & Custody Mediation — as well as other Alternative Dispute Resolution ADR methodologies — as the direct result of his firm conviction that citizens of a free nation should scrupulously avoid the abdication of control and responsibility for designing their own futures at every given opportunity.
Goals. Our overarching goals for Mediation, Progressive Divorce and Collaborative Law are all quite similar; i.e. to use whatever non-violent and respectful means possible in a given situation to deliver cooperatively developed, high-quality solutions to family disputes.
Our goal for New Jersey Divorce Arbitration, both binding and non-binding, is to provide legally sustainable, thoughtful decisions to parties who cannot settle all of their issues cooperatively. One key advantage of New Jersey Divorce Arbitration — which makes it more desirable than a judicial decision — is cost containment.
Arbitration also provides the parties with the freedom to choose the person who will be deciding their case. Needless disruption of work schedules can also be eliminated by avoiding the necessity of multiple court appearances. Sensitive issues, such as unreported income, can also be addressed in Arbitration.
Required Commitment. No commitment to the mediation process is demanded. Participation in the process must be entirely voluntary to be effective. We will never do anything to compel parties to stay in the mediation or in any other ADR engagement against their will, with the sole exception of binding Arbitration of economic issues, which involves a binding contract.
Using Consultants, Including Consulting Lawyers. Consultation with lawyers or other technical experts is always invited. Their level of direct involvement with the parties in the mediation process itself varies with the requirements and dimensions of the particular case.
“Fact & Feeling Channel” Communications. We believe, in handling family disputes, that the necessary level of result-based orientation be suitably balanced with the importance of the parties dealing with each other and in understanding what is really at stake in the conflict. The parties must be able to communicate directly with each other.
Out-of-Session Debates. While we will always attempt to give our clients a balanced view that respects their primacy as decision makers, we also caution our clients of the dangers that can arise from dealing with each other on tough issues without someone else present to moderate the process.
Deadlocks. Another positive attribute of mediated decision-making, as opposed to agreements struck under the gun on the day of trial, is that agreements can be structured without coercion. Mediation will give the parties enough room to thoroughly explore their disagreements. This avoids the tendency to settle for “meat-axe” style solutions that might not last or be as mutually satisfying to the parties as other possibilities requiring greater understanding to develop.
If mediation reaches impasse, the parties are often counseled to attempt other non-litigated means prior to enlisting the help of the court. This could include Progressive Divorce, Collaborative Law, binding or non-binding Arbitration, or any hybrid approach well-suited to the requirements of the case. There are those situations, unfortunately, where we will make the observation to both parties that the case is no longer a candidate for successful resolution apart from the court process.
“Discourage litigation. Persuade neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses, and a waste of time.”