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DIVORCE MEDIATION – A BETTER WAY OUT?

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To provide our readers with more information about divorce mediation, which we suggest be looked at as an alternative to long and expensive divorce litigation I interviewed mediator Ira C. Kaplan of Hackensack.

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Law Offices of Ira C. Kaplan, P.C

190 Moore Street, Suite 430

Hackensack, NJ 07601

Tel: (201) 457-9090  

Email:[email protected] 

http://irakaplanlaw.com 

Ira C. Kaplan has been practicing as a family law attorney for 30 years.  His practice is primarily in Bergen County, New Jersey.  Mr. Kaplan is often appointed by courts as a mediator or guardian ad litem in family and guardianship matters. 

What is Divorce Mediation?

Divorce mediation is a process in which a trained neutral person, called a mediator, facilitates the resolution of a dispute between two spouses. While mediation can be used to resolve virtually any dispute, it is most commonly used in family/divorce matters and civil/commercial matters. There are many advantages in using divorce mediation in place of legal proceedings; where the parties often become more adversarial. Divorce mediation is most commonly used when a couple wants to control the process and outcome. Divorce mediation could potentially save people thousands, if not tens of thousands of dollars in legal fees.

In the face of the Coronavirus (COVID-19) pandemic, divorcing couples may find it more difficult to resolve their disputes due to a number of factors including a change in financial circumstances, drops in property value, changes in child custody and visitation, and very limited access to the courts.  Divorce mediation is becoming a more attractive solution to resolving disputes quickly and effectively during the pandemic.  Divorce mediation can be done via online video chats and mediators can ensure that any agreements reached are filed properly and quickly presented to judges for approval.  Divorce mediation can be a very productive option for those couples eager to move forward in their divorce process during this time. 

Although each mediator has his or her own approach, most mediations tend to move along the same lines.  We interviewed attorney,  Ira C. Kaplan, Esq. of The Law Offices of Ira C. Kaplan P.C., who has been a certified family law mediator since 2002.

What is the ultimate goal of divorce mediation?

The ultimate goal of divorce mediation is to bring the parties together, to reach a settlement to which they both agree and not one imposed upon them by a court. One of the primary goals of a court approved mediator is to help maintain a functioning, continuing relationship between the parties if children are involved and the parties need to co-parent. It allows all parties the ability to preserve financial resources. 

How do you make sure to achieve those goals?

To bring the parties to a mutually acceptable agreement, I highlight that divorce mediation is a voluntary process-it’s their process. I ask them to remove the emotion. Look at it as a business transaction. In what other situation would you unnecessarily squander finances, your time, and significant emotional energy? I impress upon them the need to act reasonably and in good faith, so they can obtain a mutually acceptable resolution. The resolution must satisfy both parties. 

What is your typical approach? 

I first review submissions of the parties which sets forth the issues in dispute, related financial information, and each party’s respective position on settlement. During the first meeting, I highlight terms and conditions of the process, specifically about confidentiality-everything discussed in mediation stays in mediation. (In matters where I am not appointed by the court, the parties will have already signed a retainer agreement which contains the terms and conditions of mediation).  I highlight that I am a neutral third party. I cannot be called as a witness in a court proceeding. I impress upon the parties that I am there to facilitate and manage the situation; to bring them to their settlement. Lastly, given my experience, I try to give them a strong sense of how the court might rule on the issues. This often goes a long way in promoting resolution. When the parties reach a resolution, I prepare a Memorandum of Understanding (MOU) for execution. The Memorandum of Understanding sets forth the significant terms of settlement and serves as a guide for counsel to prepare a more comprehensive Property Settlement Agreement (PSA) to be incorporated into the parties’ final Judgment of Divorce (JOD).   

Are attorneys present during mediation? 

It is up to the parties whether attorneys will be present for the mediation process. More often than not, they are. For me, regardless of the decision, it must be consistent on both sides. Regardless, I always advise the parties to consult with an attorney during the process and to have an attorney review any MOU and final PSA.  

What about a party’s concern that a male mediator will favor a husband and a female mediator will favor a wife? 

I have never had anyone raise this potential bias with me, however, I do make sure to inform both parties early in the process that my role is neutral and that I do not favor one party over the other. Divorce mediators rely upon their reputations for fairness.  If I was considered biased toward either a husband or wife, I would not be called upon to mediate. Nevertheless, if either party does not feel comfortable with any aspect of the mediation process, including the need for a level playing field between the parties, then perhaps the mediator or the process are not a good fit.  

How long does a divorce mediation typically take? 

The length of a divorce mediation varies on a case by case basis.  Some issues can be resolved in just one session and some in up to three or more sessions, depending on the complexity of the case and the emotional state of the parties.  On average, most divorce mediations take 2-3 sessions to resolve. If after three sessions you have not made significant headway, the case may not be appropriate for mediation. 

What happens if the parties simply cannot reach an agreement?

In court-ordered divorce mediations, the parties receive the first two hours at no expense. The first hour is allotted for preparation which includes review of the parties’ financial information and positions on settlement. After one hour of actual mediation, the parties are no longer required to mediate. At that point, either can opt out of the divorce mediation process and go back to the court process. If they continue with mediation, it is at their own expense which is usually split between the parties. Private parties who do not reach an agreement during divorce mediation will need to resort to the court system for resolution. Notably, mediation is part of the court process. So at some point the parties who opt for the court process will be in mediation. It’s better to do so when you are in control and long before significant financial and emotional energy has been spent! 

Are there alternative methods to divorce mediation? 

I am a newly inducted member of the Collaborative Divorce Association of North Jersey. (www.collaborativedivorceassociationofnorthjersey.com ). I see collaborative divorce as an enhancement of the mediation process. The collaborative divorce process is children and family focused, with involvement of a divorce coach and therapeutic support, as needed. In a collaborative divorce the parties and collaborating counsel pledge, in writing, not to go to court, to have an honest and open exchange of information, with solutions that address the needs of all family members. The team approach with collaboratively trained attorneys and other professionals takes a holistic and dignified approach to divorce. It’s the next wave, and it’s here now!

Sadayah Q. DuRant is a recent graduate of Rutgers School of Law, where she was Editor of the Race and The Law Review Journal. We are pleased to introduce her as a new contributor. 

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