The Goldilocks of Divorce: Mediation, Arbitration, or the Courtroom.
By Snyder Sarno D'Aniello Maceri da Costa LLC on August 21, 2023
Which One is Just Right for You?
The traditional divorce process can be very timely, costly, and stressful, often taking over a year for parties to finalize a divorce by going through the court. The timeline in New Jersey is even worse as the state is dealing with historic backlogs in the Family division as a result of the COVID-19 pandemic and the number of judicial vacancies that have yet to be filled. In the past three years, the court system in NJ has struggled to close its high vacancy rate, which has left courts operating with roughly 60 open positions, with New Jersey’s Chief Justice, Stuart Rabner warning that the state should be operating with no more than 30 vacancies. (See The Economist, Judge and staff shortages are leaving Americans in limbo, 13 July 2023.). In February of this year, the situation became so dire that Chief Justice Rabner suspended civil and divorce trials in roughly six counties to allow for family judges to focus on resolving time sensitive matters such as domestic violent complaints. (See News Release, Statement of Chief Justice on Suspension of Civil and Matrimonial Trials in Two Vicinages Due to Vacancy Crisis NJ court, njcourts.gov, 07 February 2023, [Press release]). Chambers that still allow for matrimonial trials, parties seeking a divorce, or to resolve contested family issues may be waiting for more than three years to reach some finality. (See The Economist, Judge and staff shortages are leaving Americans in limbo, 13 July 2023.).
Given that time equals money, it is important to remember that going through the court is not the only way to seek a divorce or resolve a family dispute. Beyond the extended timeline and associated costs, the formality, lack of privacy, and conflict charged process that the courtroom lends itself to, is not ideal for everybody. Thus, divorcing parties have turned to Alternative Dispute Resolution methods (ADR) to resolve their family issues faster, cheaper, and with a sense of confidentiality and privacy but in a more relaxed setting.
What is Alternative Dispute Resolution
Arbitration and mediation are two of the more popular forms of ADR used in family law for parties who wish to dissolve their marital relationships and settle contested family disputes at less cost. Both mediation and arbitration occur outside the courtroom, often at a location and time of the parties’ choosing. A neutral third person of the parties’ choosing oversees the process, and the parties have control over selecting which disputed issues they wish to deal with; thus, mediation and arbitration allow parties to maintain control over the dissolution of their marriage that the courtroom does not provide.
While arbitration and mediation share many similarities that parties may desire, they also have differences that may make one or the other more ideal for your situation. However, you are not limited to choosing only one option. Mediation and arbitration can resolve any number of family issues, such as custody, child support, alimony, parenting time, division of property, and business evaluation. A party may choose to deal with some disputed issues through mediation, others through arbitration, and others in the courtroom. Thus, it is essential to consider what each resolution method offers and choose what makes the most sense to your unique situation and needs.
Mediation offers a more relaxed, collaborative, hands-on experience to resolve material disputes, ideal for parties who wish to maintain an amicable relationship with each other, such as spouses who have children that they wish to continue to raise together and want to preserve strong family ties. Mediation is unique in that the legal parties aim to work together in identifying their issues, brainstorm solutions, and collectively agree on unique solutions to fit their specific needs, solutions that the court and arbitration may be unable to provide.
Mediation is overseen by a neutral third party called the mediator. If both parties cannot agree on a matter, the mediator steps in to help the parties resolve the conflict. The mediator's role is to use their expertise in conflict resolution to help productively guide the party's conversations as they attempt to finalize an agreement. If the parties do come to some mutually acceptable agreement on the topics, they have chosen to discuss; the parties can choose to have a more formal agreement drafted that lists their agreed-upon terms. Upon both parties signing that agreement, those terms become binding. If the parties do not reach a signed agreement, then their conversations in mediation remain confidential and non-binding.
Mediation’s nonbinding commitment makes it stand out from arbitration and the courtroom. Choosing mediation first does not waive your right to attempt to arbitrate or litigate the matters you failed to resolve. Rather the relaxed, informal, collaborative, nonbinding process makes mediation an ideal initial step for divorcing parties, knowing that if partial or no agreement comes from the process, parties may try arbitration or the courtroom next.
For clarity, we highlighted some of the major attributes that mediation offers:
- Cheaper, parties can avoid lawyer fees and time spent in the courtroom by solving key issues amongst each other.
- Faster, mediation is often viewed as an expedited negotiation.
- Private, occurs outside of the courtroom, often in a private office, or virtually via a closed -Zoom session.
- Confidential, allowing for venting and open communication.
- Voluntary, a party is never forced to agree to any terms.
- Non-Binding, nothing said in mediation is final unless both parties agree and sign a more formal document saying so.
- Collaborative process, forces parties to work together and find solutions that best fit their needs.
- Non formal, no set rules or procedures that parties must follow.
- Parties are in control,
- Parties may pick when and where mediation will occur,
- Parties may select the mediator and
- Parties may choose what topics to discuss in mediation.
- Resolve Post Judgment Issues.
- Flexible and Convenient, mediation works around the legal party’s availability.
Arbitration offers an expedited, private, and relaxed version of a matrimonial trial occurring in an office rather than a courtroom finding the middle ground between the courtroom’s formalities and mediation’s relaxed and nonbinding process. By having the legal parties submit contested issues to be resolved by the Arbitrator, they can be sure that that Arbitrator they hand selected, with experience in the area of dispute, will make a faster, cheaper but final decision no matter the parties feelings.
When the parties agree to enter arbitration, they choose in advance what topics to resolve and who the Arbitrator will be (the person resolving the family issues for the parties, someone with experience in the relevant legal field and training in the arbitration process). The parties’ lawyers proceed through the formal procedures such as a discovery period, testifying under oath, and presenting facts and evidence to the Arbitrator but in a more relaxed manner. In the end, the Arbitrator issues an award that sets forth their decision on the disputed issue; the parties typically will have agreed in advance that the award is binding and non-appealable, offering a finality that the courtroom cannot match. If the parties both agree, they can build in a limited Appeal process to the arbitration.
The binding nature of the Arbitrator’s decision in a less formal but efficient and private process distinguishes arbitration from mediation and the courtroom. By choosing arbitration, parties often waive the right to take any issue that was decided by the Arbitrator to mediation or the courtroom after. Thus, arbitration is ideal for those disputed issues that are either too sensitive or complex to be resolved by the legal parties themselves using the collaborative mediation process and too time-consuming and thus expensive to handle through a full-blown matrimonial trial in a courtroom.
For clarity, we highlighted some of the major attributes that arbitration offers:
- Cheaper than the courtroom, parties pay lawyer and arbitration fees but spend less time in the process and in the courtroom.
- Faster, arbitration is very efficient given that the process and issues are scheduled and resolved by the Arbitrator.
- Private, case is presented outside of the courtroom often in a private office or virtually via a closed Zoom link.
- Can be confidential, parties can agree in advance that the process is confidential.
- Binding and non-appealable, typically parties agree ahead of time to be bound by the Arbitrator’s award and cannot appeal the decision, except for a few legal exceptions. Nonetheless, if the parties so desire, they can provide for an Appeal process.
- Non-collaborative, divorcing parties are hands off as the issues are resolved by the Arbitrator.
- Procedurally less formal than the courtroom more formal than mediation,
- Lawyers present facts and evidence but procedural rules are often relaxed,
- Parties are subject to discovery procedures, and
- Parties may be subject to testify under oath.
- Parties and Lawyers and Arbitrator split control
- Parties are in control of choosing an Arbitrator,
- Parties are in control of when and where arbitration will occur,
- Parties are in control of what topics they chose to send to arbitration,
- Lawyers and Arbitrator are in control of handling the rules and procedure’s unless parties mutually agree in advance to act otherwise.
- Sense of finality.
- Resolve Post Judgment Issues.
- Flexible and Convenient, often the Arbitrator works with parties to plan the process when it fits best within everybody’s schedule.
Despite the timetable, legal fees, lack of privacy, and confidentiality accompanying a divorce or resolving a family issue through the courtroom, the more traditional route with the court’s formalities and appealable decisions may be the right option for some parties’ situations. The unique characteristics we listed above that a form of ADR can provide may not be an advantage for every party. For example, parties dealing with ongoing volatile, violent relationships would likely not find the collaborative mediation process the right choice to handle their disputes.
The courtroom, with its lack of collaboration and appealable decisions based on the law, may be ideal for parties who feel that they and their spouse have a history of uneven power, those who feel their spouse is aggressive and are at a disadvantage when it comes to settling issues revolving around alimony, child support, child custody, and other contested family disputes. The courtroom may be a better choice for parties with a history of domestic violence in all forms and restraining orders.
For clarity, we highlighted some of the major attributes that the traditional courtroom offers:
- Longer timeline to finalize a divorce and family issues.
- Not private, occurs in a courtroom.
- Not confidential.
- Not voluntary, what the Judge asks you to do you must abide by.
- Binding but appealable decision.
- Does not foster collaboration among divorcing parties, the judge and lawyers handle the process.
- Formal court rules and procedures parties must follow.
- Sense of finality.
- Not Flexible and Convenient parties are at the court’s will.
As an alternative form of dispute resolution, mediation and arbitration can save time, money, and much stress for the parties involved. Successful mediation and arbitration can resolve your issues and provide you with a convenient timetable that meets your busy schedule. It is crucial to choose a mediator and Arbitrator who understands the process and has experience settling cases inside and outside the courtroom. Our lawyers here at Snyder Sarno D'Aniello Maceri & da Costa LLC, including Jerry S. D'Aniello Partner and Michael J. Stanton, and Charles C. Abut, Of Counsel have both a strong ligation background and the time-tested experience mediating and arbitrating to resolve your most complex divorce and family law issues outside of the courtroom.
Mr. D’Aniello is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney and has successfully represented clients in all aspects of divorce and Family law both in and out of court. Mr. D’Aniello is also a skilled negotiator and mediator, having completed the intensive interactive Program on Negotiation at Harvard School of Law. Also, he is an accredited Arbitrator having successfully completed the American Academy of Matrimonial Lawyers Arbitration Training Institute.
If you have questions about your New Jersey divorce or family law issues, please contact the experienced attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLC at (973) 274-5200.
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