Perhaps mediation is not needed, if the lawyers can work together and settle the case quickly, amicably, and inexpensively. Quite often, being an advocate causes a lawyer to respond aggressively or initiate preemptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and play a meditative role at the same time. Also, when lawyers do most of the negotiating, the parties do not communicate directly to make their own agreement, which may also improve their interactions down the road. Using a mediator might be like taking out an insurance policy to maintain an amicable situation among all parties and counsel. It also affords the family the benefit of a trained innovative problem-solver. Finally, it has been suggested that the use of mediation can be a transformative experience that may actually improve the interaction and lives of the family members instead of just putting a settlement bandage on family dysfunctions.

Isn’t mediation just another form of dual representation, with all the limitations that such conflict situations carry? It is true that in preventive mediations involved in premarital agreements, adoptions, and putting together a family business, the mediator’s role of putting together and building harmonious relationships seems very much like dual representation (Section 2.2 of Model Code of Professional Responsibility). Unless there is a written waiver from all parties, a single lawyer must withdraw from representing two clients when conflicts appear irreconcilable. Conflicts, real or apparent, are generally present in virtually all dual representation situations.

As a neutral third party, the mediator represents neither party. This may be clearer in the mediator’s role of dispute resolver and case manager than it is in preventive mediation. The new Model Standards of Conduct for Mediators promulgated by the ABA, American Arbitration Association, and Society for Professionals of Dispute Resolution encourages all parties in a mediation to consult independent counsel. In many mediations, counsel attend sessions with their clients and participate at the mediation table.

In order to file for a divorce in New Jersey, either spouse must have been a resident of the State for at least one year prior to the filing of the action. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery. In cases of adultery the requirement is that at least one spouse must be a New Jersey resident. In New Jersey there are eight grounds or causes to file for divorce. The three most popular grounds are extreme cruelty, no-fault separation, and adultery. Remember, the grounds of extreme cruelty are just a “term of art” and it does not mean that your spouse was extremely cruel.

There are numerous issues to consider when drafting a divorce agreement. The parties are likely to have debts and property. They may have children. With children come the added decisions related to custody, visitation, child support, health insurance, and childcare expenses. A spouse may be seeking spousal support. With the mediator’s help, they would work through all the issues they need to resolve so the two of them can get through their divorce.

Mediation is flexible and confidential. Instead of parading your marital issues in front of a courtroom following the timeline allotted by the judge, the mediator works with both parties on their terms. The mediator remains neutral. They will not give advice to either party. They are there merely to help facilitate the negotiations. Mediators can also be a source of information about the divorce process and divorce law. Either party to the divorce can stop mediation at any time. No one can be forced to participate in mediation. One or both parties can have lawyers present during the mediation sessions.

There are different types of divorce mediators. Some Christian organizations offer divorce mediation, but it would be advisable to know whether or not the goal of the mediator is to assist with the divorce proceeding or reconcile the marriage. Therapists and lawyers can also act as divorce mediators. Some mediators devote their careers to divorce mediation. Full-time divorce mediators usually have backgrounds as lawyers or mental health professionals.

The cost of divorce mediation varies greatly. In most cases, both parties split the cost of mediation. Mediation usually takes place over several sessions. Mediators often charge a fee per session. Payment is usually due at the end of each session. The number of sessions needed to reach an agreement depends on the number and complexity of the issues that need to be resolved and how cooperative the parties are. Even a lengthy mediation process could save the parties involved thousands of dollars over the cost of an adversarial divorce.

The benefits of mediation are that it can lessen conflict between the parties and give each party a sense of empowerment over the divorce proceedings and resulting agreement. A good divorce mediator should be helping the parties come to a win-win agreement, where both parties feel that the agreement is fair. If both parties are satisfied with the outcome of mediation, they are more likely to adhere to the agreement. They may also have a sense of cooperation with each other, which is extremely important if children are involved. With an agreement in place, the parties can proceed with an uncontested divorce instead of an often costly adversarial divorce.