While both forms of mediation help couples reach agreements in a less adversarial setting, they differ in terms of process, time, and flexibility. Let’s explore how these two forms of mediation compare and which one might be right for your situation.
What is mediation? It’s a process that allows couples to resolve disputes in a neutral and informal setting. The goal is to help divorcing spouses communicate effectively and work toward an agreement, with the assistance of a mediator. This professional is a neutral facilitator and not a legal representative for either party. Their role is to guide conversations and keep negotiations on track. Unlike a judge, the mediator does not make decisions for the parties.
Court-Ordered Mediation
Court-ordered mediation (also known as court-mandated mediation) can only occur after divorce papers are officially filed. New Jersey law requires couples to engage in court-ordered mediation when they face significant disagreements over parenting matters or financial disputes. This includes disputes over child custody, parenting time, or financial issues like alimony and property division.
In these situations, the judge will order or mandate that both parties attend mediation to try to resolve their differences. Couples then select a mediator from a court-approved list, and the court covers the cost of the first two hours, which includes an hour of preparation and one mediation session. If more time is needed to reach an agreement, the couple will have to pay for the additional sessions themselves. Fee waivers are available for qualified low-income spouses.
What if court-ordered mediation doesn’t result in an agreement? The case will remain on a “court track” and future hearing dates before the judge will be set.
Mandatory Mediation Exceptions
It’s important to note that not all divorcing couples with disputes are required to go through court-ordered mediation:
- In some cases, such as when domestic violence is present or abuse is alleged, a judge may exempt a couple from mandatory mediation.
- If there is an active domestic violence restraining order in place, the court cannot mandate mediation on child custody issues.
- Moreover, if a mediator determines that continuing mediation would be inappropriate—due to a power imbalance or inability to manage conflict—a request to release the couple from the process can be submitted.
Mediator Qualifications for Court-Ordered Mediation
Court-approved mediators in New Jersey must complete at least 40 hours of mediation training, and additional qualifications are required to mediate cases involving domestic violence. These mediators are usually attorneys with relevant experience in family law. Several of our firm attorneys are court-approved mediators.
How does private mediation differ?
Private mediation offers more flexibility than court-ordered mediation. Couples can choose to attend private mediation at any point in the divorce process — before or after filing for divorce — and they have the freedom to select any mediator they agree upon. Private mediation can focus on resolving specific disputes or aim to settle the entire divorce. Many couples who opt for private mediation strive to reach a comprehensive agreement, which can significantly reduce the time and costs associated with litigation.
In private mediation, you have complete control over selecting the mediator, ensuring they have the qualifications and experience suited to your needs. You do not need to use the court-approved mediator list, though that can be a good starting point for understanding which attorneys are also mediators. Spouses typically both interview the mediator (alone or together) before making a mutual decision on who to work with.
Private mediation allows for a more tailored approach, giving couples the option to resolve matters on their own timeline and terms. If your differences are minor to moderate, and you are open to the process of negotiation, you may only need a few mediation sessions to resolve your disputes. For more complex issues or larger disagreements, additional sessions may be required.
Once an agreement is reached through private mediation, the settlement can be submitted to the court. If the agreement resolves all issues, it can be filed along with a complaint for an uncontested divorce, streamlining the legal process. If spouses can’t reach an agreement through private mediation, they can fall back to using the courts.
Which form of mediation is right for your divorce?
Both court-ordered and private mediation aim to help couples resolve disputes in a more amicable and cost-effective way than going to trial. Court-ordered mediation is often mandated for certain disputes once a divorce is filed, while private mediation offers greater flexibility in timing, mediator choice, and the issues you choose to address. Understanding the differences between these options can help you make the best decision for your situation.
Have questions about court-mandated or private mediation in your divorce? We can help. To meet with one of our attorneys to discuss mediation and the issues involved in your divorce, please call us today at 888-888-0919 to schedule your initial consultation.
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