Mediation and Arbitration: Alternative Tools to Complete a Divorce Settlement
The COVID-19 pandemic has stalled many transactions and legal procedures, forcing many people to find new ways to develop their commercial activity to stay afloat on the market.
The same stands true for court proceedings in some counties. As a result, they have chosen to make the best use of the available technology to facilitate meetings, motions, case management conferences, mediations, and trials. For example, New Jersey courts have resorted to video conferencing platforms such as Zoom that restrict guest access and record sessions.
Nevertheless, counties are experiencing vacancies in their judicial seats, close to 17%, which also contributes to cases being pushed back, thus delaying any decision-making processes for various court proceedings. This begs the question, are there ways to circumvent the lengthy and possibly delayed court process for divorce? There are alternative tools to expediently reaching a divorce settlement in New Jersey.
Alternative Dispute Resolution and Early Settlement Panels
When a case goes to court, an alternative dispute resolution (ADR) can be implemented at almost any complete step of the process. For example, at the beginning of the case, there can be a mandatory parenting time and custody mediation, which can be held without attorneys but still in the presence of courthouse staff. Attorneys would still be required to prepare their clients for this process, especially considering they would not be present as legal advisors during the dispute resolution process of mediation itself.
If the case belongs to the financial area, it’s then called Early Settlement Panel (ESP/MESP), and it is a process in which the matter is submitted to a board constituted by two or three well-versed divorce attorneys, working pro bono and making suggestions on the financial portions of the case moving into a settlement. If the case is not settled via EST, the next step would be a mandatory economic mediation, allowing the involved mediation attorneys a total of two free hours for preparation and aid with the negotiated contract or agreement.
In exceptional situations when a case does not reach a settlement stage, even using the alternative resolution tools, judges may lean toward scheduling what is known as an Intensive Settlement Conference (ISC), with them or with a second matrimonial judge. This is because some judges prefer whoever finalizes the dispute being unaware of the settlement positions.
Mediation Is Always An Option
Involved parties in a judicial case can decide to start the mediation portion even before it becomes a mandatory step. The mediation stage can begin at any point, and time the participating parties agree to, as long as they have both taken the opportunity to explore any data confirming assets and income, ensuring they will reach a more educated decision on a potential favorable settlement. Still, complex scenarios might push parties to opt-out of an ESP and move forward with mediation, as long as it is allowed by the judge and county of jurisdiction.
However, not all cases can reach the settlement status due to the difficulty of the matters or uneasiness on behalf of one party. A trial date will be set, and waiting for it to arrive is completely valid. However, trial dates could potentially be as far ahead as 2022. This proves that mediation would speed up the process, considering that Covid limitations could also affect how soon a trial can be arranged, even with all the current technology used as a relief measure.
Assuming that waiting for a trial date is not something you look forward to having the case concluded, you and the other involved party can voluntarily agree to participate in binding arbitration, with or without reserving the right to appeal the final decision. An arbitration is comparable to a trial. It requires witness testimonies, presenting burden of proof, adhering strictly to the Rules of Evidence, a court stenographer taking written record of all verbal interactions, and more. Once the arbitration ends, the case is deemed as concluded. People who have the possibility of filing an appeal to dispute the resolution can assemble an appellate arbitration process included in the arbitration agreement, and it would still be resolved much quicker than if the case were to go to trial in Family Court and to file an appeal to the Appellate Division afterward.
To this date, attorneys prefer and discuss with their clients the pros and cons of arbitration cases and mediation cases, participating as the active legal representative or only as neutral legal counselors. However, considering the pushback on trial dates and the vacancies on the judicial system staff (particularly judges), it is best advised to use any alternative matter resolution tools to close pending cases.
Contact our Union, NJ Mediation and Divorce Lawyers for a Consultation
If you or a loved one are in the middle of a divorce process and would like to explore alternative resolution tools such as mediation and arbitration, you are entitled to seek the professional advice of a divorce lawyer to guide your case and safeguard your best interests.
At Edward Cooper, Esq, for over 30 years, we have successfully represented clients in Clark, Roselle, Garwood, and throughout Union and Essex Counties and northern Middlesex County. Whether you are currently involved in a divorce process or want to speed up a case conclusion by choosing mediation and/or arbitration, contact us for a consultation with Mr. Cooper.