One of the first options to consider when you start your divorce is whether you want to proceed through litigation, mediation, or arbitration.
In general, at the outset of a divorce, one chooses amongst these paths.
Litigation is what most people are familiar with through popular culture. We see trials, depositions, and the like portrayed in movies and TV shows all the time. It starts with filing a complaint for divorce, and it ends in a trial in which a judge (there are no juries in family court, and judges conduct what are known as “bench trials”) will hear the evidence and testimony and make a decision based on statutory and case law about all the issues in your case: what the custody and parenting time arrangements should be; how much alimony should be paid; how much child support is due; how to distribute retirement and bank accounts and businesses, etc. Along the way, there will be an exchange of discovery (information and documents) so that both sides have all of the information – the evidence at trial – to shape and present their cases.
Arbitration is similar to a trial. In fact, I often describe it as a “private trial.” While a trial is conducted by the judge in state court, an arbitration is conducted by an attorney whom the parties have hired to be the arbitrator (i.e., the stand-in for the judge). Rather than occur in court, the trial occurs in an agreed-upon location (usually the arbitrator’s office). Both sides can agree upon the rules of engagement and may choose to relax the formality of the rules of evidence for the sake of efficiency. As you might guess, a private trial comes with an even bigger price tag than a regular trial; however, it is more efficient and may be necessary if there are sensitive issues that require confidentiality or from which the court should be shielded due to a state court judge’s obligation to report crimes to the authorities. The oft cited example of this is in cases in which a party may have been dishonest with regard to his or her filed tax returns; in that instance, a state court judge has a duty to make a report to the IRS and state taxing authority. An arbitrator would be under no such obligation. In my experience, most cases do not start out in arbitration. Rather, the parties might agree to arbitrate because of issues like the one I just described, or because they see the writing on the wall that it is going to take years to get a trial date and a decision from a state court judge – an unfortunate reality of our legal system right now.
Most roads lead to mediation. Mediation is a confidential process wherein an agreed upon neutral person (the mediator) tries to broker an agreement. In my experience, usually the mediator will start out by meeting with the parties separately to assess their positions, what issues are most important to them, and whether there is flexibility on one issue or another for either side. Knowing what is important to each party, what may be less important, and what each party really believes he or she should get out of the negotiations helps the mediator craft a deal that both parties can live with.
You may also hear the phrase “collaborative divorce.” A collaborative divorce is similar to mediation insofar as it is a confidential process involving a neutral that attempts to negotiate a fair settlement; the parties may agree to work with experts (for example, forensic accountants) and form a team of people who will help them assess their circumstances and reach a fair agreement. One is required to commit in writing to the collaborative process and it is delineated from any other process that may be needed if collaborative divorce fails. While it may be a worthwhile endeavor if you and your spouse get along and trust one another, I have seen this process fall apart completely when one party is not honest or the other party just thinks the other party is not being honest. If that happens and the collaborative divorce process fails, you must start over and all the money that went into paying the neutral, the lawyers, and the experts, goes to waste because the experts and neutral can no longer be involved in a subsequent stage of your divorce process once the collaborative process is abandoned. Therefore, I personally see no advantage to this over plain old mediation (which can also involve experts if agreed upon).
Most Roads Lead to Mediation
The reason most roads lead to mediation is that, in New Jersey, it is a required part of the litigation process. Once a complaint for divorce is filed, this triggers a series of mandatory court events that must take place before a trial can be conducted. For those with unemancipated children, this includes custody and parenting time mediation. For everyone, it also includes a mediation-like process called Early Settlement Panel and, if that fails, economic mediation.
Alternatively, you can choose to go to mediation voluntarily, either without filing a complaint for divorce and initiating litigation, or alternatively at any point in the often long process of litigating a case from start (filing the complaint) to finish (trial).
Going to mediation from the jump is often viewed as an amicable, civilized way to get divorced. And it is. However, it is important to go into mediation with your eyes open – meaning, with all the information you need to make an educated decision about the issues. Unfortunately, all too often one party is not as forthcoming as he or she should be, or does not do the right thing in terms of maintaining the status quo financial arrangements. In those cases, you may have no choice: you will need to initiate litigation to obtain a court order to compel information or to direct a party to act in a certain way.
Jessica Diamond Lia is a Partner in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or firstname.lastname@example.org.