I created this site back in 1996, still the "dark ages" of divorce
mediation, and this is only the second time I have taken the time to modify
this Section. I apologize for my laziness. And since I added a great deal of
new material recently, I also apologize if I seem a bit long winded.
In those very early days, primarily as a result of the negative comments from
my brothers and sisters of the organized matrimonial bar, it was alleged that
mediation of family matters was fundamentally unfair in not properly protecting
the parties, especially the wives unfamiliar with financial matters; that it
cost more in the long run (since you would have to hire lawyers anyway) than
the "tried and true" adversarial two lawyer approach; and in any event
it just did not work. In this section's first modification I, like the fool I was,
tried to counter such adverse and unfounded publicity by including quotes from
legal publications and hundreds of studies which showed that all of that hype was
absolute nonsense. The public was slow to learn the truth, but learn it they have.
To the point where I then (back in 2000) noted that New Jersey's Supreme Court had
instituted a pilot program in several counties which MANDATED (lawyer approval no
longer being necessary) that its trial Judges refer ALL matters in dispute,
including the economic issues the public had for years been told that mediators
were not competent to deal with, to private (not court related) mediators such as
myself. I also noted at that time that our legislature in New Jersy was then
"seriously considering" passing a mediation statute ("The Uniform Mediation Act")
which would be designed to put into law those aspects of mediation, such as
confidentiality, that have long been considered by parties and mediators alike to
be vitally important to the mediation precess. Since then I have no longer included
quotes from "learned sources" to demonstate what has been shown to be obvious.
And the advances that have occurred since those early days has compelled me to again
shake off my laziness respecting web site editing and bring my guests current.
Given the matrimonial bars significant lobbying power, it came as no surprise to me
that it took an additional four (4) years from my earlier noting of our State
Legislature's "seriously considering" to its actually having enacted "The Uniform
Mediation Act of New Jersey (UMA-NJ) on November 22, 2004. In my view, the primary
purposes are designed to (1) protect those who choose to resolve their disputes through
mediation, and (2) to assure the confidentiality of communications between mediator and
the parties during the course of the mediation process. For all of you who are
interested in learning a great deal more about NJ's UMA, I urge you to read a really
excellent article by fellow accredited professional mediator (APM) Anju Jessani, also
a member of the Association of Professional Mediators (NJAPM) our State's premiere
mediation organization. You can find it by clicking on NJ-UMA
Article.
And since the UMA became law, several additional events concerning mediation have
occured which have reinforced my initial belief in the value and valididy of the
mediation process. First was the fact that in those four years the number of family
mediators (most being the same matrimonial lawyers who years before were the ones
throwing mud) has grown tremendously. [Whether this was the result of newly acquired
wisdom or application of the doctrine of "if you can't beat them join them" I leave to
you to decide.] Those in doubt as to such growth need only check their current yellow
pages and compare it with those of four or more years ago. There were so few listings
when I started doing this work back in 1989 that I had to fight with "Ma Bell" to create
a separate "Mediators" section. (I do not now recall where they stuck the 2 or 3 of us
back then.) Another is our NJ Supreme court having recently adopted Evidence Rule 519
which incorporates most of the UMA's provisions regarding the confidentiality of
communications during the mediation process. Although this Rule is something that
I believe must be read by all mediators and trial attorneys alike, those
interested can find it by clicking on Evidence Rule 519. And last but far from least is the recent
Court Rule (5:4-2(h) that provides, if you can believe it, that the Clerk will not accept
your Divorce Complaint for filing unless you and your lawyer Certify to having received
and read a document entitled "Divorce-Dispute Resolution Alternatives to Conventional
Litigation" and thus have been informedof that alternatives to the litigation approach
are available. That, I think, says it all as to how far we have come from the mud slinging
of only a few years ago to full acceptance of mediation today.
It is now clear beyond dispute that mediating a matter, keeping in mind that both
sides must be acting in good faith for the process to work, will cost less in
the long run than the adversarial approach; with money being only one of the
many "savings" to be had, such as in emotional dollars, which I deal
with elsewhere. It is also now uncontested THAT IT WORKS!!!
A simple example of how the time/cost equation works in both forms of matrimonial
dispute resolution might be helpful. Assume that during the course of the
adversarial process wife phones her lawyer and inquires as to which of the two
cars her husband is agreeing to transfer to her. [She could have asked her husband
but her lawyer advised against such contact.] Her lawyer calls husband's lawyer, who
in turn calls husband who gives answer, with his lawyer then calling her's, who
in the end phones wife. Forgetting, for the moment, the time spent in telephone
tag, or the argument that ensued when her lawyer heard that it was proposed that
she get the lesser car, or the time spent during which the wife berated her
lawyer for being a wimp, etc.; it is clear that at matrimonial lawyers' hourly
rates that run somewhere in the area of $350 per hour EACH, both parties have
amassed a sizeable bill to answer a simple question. In mediation the answer, like it
or not, comes immediately; with some additional time spent discussing (1) wife's view
that husband's position is unfair, and (2) whether some compromise could be made
by way of moving some part of the marital assets from husband to wife to make up
the difference between the Volvo and the Mercedes.
But the question still remains, "What can we expect to pay if we mediate?"
My answer would be the same no matter which approach you take. "It depends on a
number of factors; but regardless of which, mediation will cost less." How complex
are the legal and factual issues? Is there a REAL custody dispute? Are the parties
still talking to each other? Do they continue to have any trust in each other?
How long have they been fighting before they entered into mediation? How entrenched
are they in their respective positions? Taking a worst case scenario (think of New York's
Mayor and Mrs.Guiliani) a matter such as that could wind up costing EACH of the
parties over $150,000. Maybe WELL over!! I personally have never mediated a matter
that required more than 15 sessions, each running between 1 to 2 hours. My hourly rate
has been $250 per hour for some years now and will soon be increased. It is for BOTH
and you can do your own arithmentic. Sure, I never had mediation clients the likes of
"The Donald and Ivana" or "Hizzoner" and his wife, but I think that my figures are
pretty much in the ballpark; with the "average" matter usually running, in my
experience, anywhere from 4 to 8 sessions.