Understanding Private Divorce Mediation

The decision to move forward with a divorce is a difficult one, and involves a lot of decision-making. Not only must parties decide what comes next in their lives—whether to move, how to break the news, what family relationships will look like, and more—but they also need to decide how their divorce will unfold. 

Divorcing couples may be surprised to learn they have several options for how to proceed with divorce. One option that more people are exploring is private divorce mediation. 

What is private mediation?

Private divorce mediation is a voluntary legal process during which the parties engage a professionally trained, neutral mediator to help them negotiate and reach mutually acceptable agreements on various aspects of their divorce. Any aspect of a divorce can be mediated—property division, child custody, child support, spousal support, and any other relevant issues. 

Private mediation typically offers a more amicable, efficient, and personalized alternative to divorce litigation. Unlike litigation, which relies on the discretion of a judge to determine outcomes, mediation allows parties to work toward a mutually agreeable resolution. The collaborative, communicative nature of mediation also benefits parties by helping them preserve family relationships during a stressful time in their lives. 

How does private divorce mediation work? 

When divorcing spouses choose to enter into private mediation, they begin by selecting a mediator to work with for the process. The mediator typically meets with both parties individually to outline goals and desired outcomes and then sets a schedule that works for both parties to have joint sessions. 

During the sessions, the mediator facilitates a dialogue with the goal of resolving matters such as child custody and division of marital property. Once an agreement has been reached, the mediator assists with drafting the formal settlement documents which are submitted to the court for approval. 

Once approved, the settlement becomes a binding legal document.

What can you discuss during a private divorce mediation?

As private mediation proceedings are more confidential than litigation, parties are free to discuss and disclose openly. This includes all aspects of marital property such as assets, debts, retirement accounts, and taxes. They can also negotiate spousal and child support. 

Remember that mediation is not a place for airing past grievances or laying blame on the other party. Rather, it’s a means to move forward from a dispute as amicably as possible.  

Pros and cons of private divorce mediation

As with any legal process, there’s no one-size-fits-all solution, and mediation may not be appropriate for all situations or circumstances. Mediation isn’t always the solution. Before moving forward, consider the following pros and cons:

Pros of private divorce mediation

• Greater control: As opposed to court-ordered mediation and litigation, during private mediation, parties have more control over the process and the outcomes. They will work together to set the agenda as well as dates, times, and locations for sessions. Further, rather than having a judge make final decisions, the parties are able to negotiate back and forth to find solutions that are mutually beneficial, or at least mutually fair.
• Lower costs: The costs of private mediation are generally much less than that of traditional litigation. Mediator fees, typically split between parties, are significantly lower than attorney fees.
• Confidentiality: Private mediation is a better option for those concerned with the confidentiality of proceedings. During court-ordered mediation and certainly court proceedings, all evidence and statements of position become part of the public record unless the court opts to seal the records for some reason. 

Cons of private divorce mediation

• Power imbalances: Sometimes one party can take a more domineering position in the mediation process. For example, in situations involving high-conflict relationships or domestic violence, mediation (while not impossible) can require a great deal of experience. As such, if the mediator is unable to restore the balance of power, it can lead to less-than-ideal circumstances for negotiating a fair resolution.
• Lack of legal advice: Mediators are neutral parties and not able to advise parties on specific legal matters. As such, this can mean that no one in the room is looking out for your specific interests unless you’re also working with a divorce attorney.
• Hidden asset disclosure: If one spouse has hidden assets, they are not necessarily disclosed in private mediation, so the final agreements can be based on incomplete information. As such, you might end up with less than you are owed in regard to marital property division.

When is the best time to start private mediation?

While mediation can be initiated during any stage of a dispute, it is best to begin before starting a costly litigation process. Beginning from a place of communication and collaboration typically leads to less stressful, more personalized outcomes for both parties. 

However, it’s entirely possible to switch to mediation during litigation, or to mediate certain aspects of the divorce.  

If the mediation is started during an already in-process litigation, the litigation process is temporarily suspended as parties attempt to resolve their issues via mediation. If mediation is unsuccessful, the litigation process (including all its associated costs and time constraining schedules) is restarted.

Note that the New Jersey court system requires that divorcing couples undergo mandatory mediation sessions regarding economic and child custody issues. 

• Economic issues: If couples are unable to resolve financial issues in a divorce, New Jersey judges may require them to participate in what is known as an Early Settlement Program (ESP). While an ESP isn’t the same as mediation, it provides an alternative dispute resolution process in an effort to address economic matters. If the outcome of the ESP doesn’t lead to an agreement, the judge will order the divorcing couple to attend mandatory post-ESP mediation.
• Custody disputes: Any time a divorce complaint involves child custody or parenting time, parents must participate in custody mediation sessions. While these may be waived, co-parents must demonstrate good reason for requesting the waiver. 

While mediation under these circumstances is court-ordered, parties do have a choice in their mediator and may choose to pursue working with a private professional rather than one who has been court-appointed. 

Is private mediation right for you?

There are several factors that can make private mediation the best solution for your dispute. If the following are important to you, it might be wise to explore the option of private mediation:

• Speed: Mediation can move more quickly toward a resolution than the traditional divorce process handled by the courts. Additionally, you can personalize your timeline to meet your unique needs rather than being beholden to court schedules.
• Confidentiality: As mentioned above, your personal affairs will likely not become public record as a result of mediation compared to matters litigated in the courts.
• Control: You are driving the process and have much more control over scheduling of sessions and the outcomes devised.
• Creativity: In mediation, concerns can be handled much more creatively than if the court was making a judgment on the presented issues. For instance, parties can get more granular in their division of marital property or planning child custody and support arrangements.

Consult with a divorce attorney

As noted above, mediators are not able to provide specific legal advice. They are merely present to facilitate the mediation process and assist in drafting resolution agreements. It’s best to work alongside an attorney, especially in complex family law matters, before deciding if mediation is the best option for your unique circumstances. 

At Dughi, Hewit & Domalewski, our team of family law attorneys are trained, court-approved mediators who can support you every step of the way, from initial consultation through to a final resolution. Reach out today to learn more about your options.