Why Do Courts Require Mediation?

Here in New Jersey, during a litigated (court) divorce, the parties are ordered to attend mediation if they are unable to resolve certain issues.  Why is that?  Simple, the court wants to give you every opportunity to settle your case.

Clients will say to me “Why do we have to go to mediation?  If I thought we could work it out on our own, we would have done that to begin with.”  When you think about it like that, it sounds like mediation would be a waste of time.  Turns out for many people, that is not the case.

Mediation is a confidential process that allows parties to resolve their differences with the assistance of a neutral mediator.  Mediators do not give you the answers or tell you what to do.  Instead, they help you and your spouse work together to come up with a solution.

It is also a different way of thinking.  Mediation is not about you against your ex.  The process is about how you can each achieve your goals.

Trained mediators understand that there are differences between you and your spouse that make it difficult to talk to one another.  Instead of focusing on the differences, a good mediator can help you both focus on what you have in common.  You both want a relationship with your children.  You want your children to be healthy and happy.  You both want some security.   From there, the mediator can help you both talk about how to achieve those goals.

New Jersey Family Courts have two mediation programs in place.  The first is Custody/Parenting Time mediation.  When parents file a Complaint with the court and indicate that there are issues regarding child custody and/or parenting time, the court will direct the parties to mediation.  These mediation sessions typically at the courthouse.

Mediation is a great method to resolve differences in custody and visitation cases.  Why? Who should decide where your children should live and when they spend time with you – you and your spouse, or someone who does not know you or anything about you and your family?  You and your spouse can make the important decisions for your children.  Since you are the ones determining the schedule, it is more likely you will both abide by the plan.  Couples commonly are more satisfied with the results from Custody/Parenting Time mediation than those who litigate.

The other mediation program is part of the divorce process and is known as Post MESP Economic Mediation.  This is different as it occurs with a mediator who is on an approved list, outside of the courthouse.  The mediator only addresses the financial issues, such as alimony, division of assets and retirement accounts.  Economic Mediation is an attempt for the parties to resolve any outstanding issues before they go to trial.  The first two hours of the mediator’s time are free to the parties.  The couple is encouraged to continue with mediation if they are not settled after the free period, but they are not obligated to do so.

Like with parenting time mediation, parties tend to have results that are more satisfactory to them both.  Because they are working outside of the courts, there is an ability to be more creative in problem-solving.  Parties achieve results that are focused on their needs and goals, even if their results are not considered what is “typical” in a divorce matter.

The reality is only about 3% of divorces end with a trial.  The majority of cases settle at some point during the process.  Even those cases where the couple believed in the beginning that they could never settle.  The courts recognize the benefits to settlement and offer assistance to parties, which includes mediation.