You are in the process of a divorce or custody dispute and you receive a notice from the court that you are required to attend either custody mediation or Matrimonial Early Settlement Panel (MESP, which deals with financial matters). You have had a long day so you put the notice aside to deal with later. Maybe every time you look over at it you become nervous – you have no idea what to expect at mediation, you’re not even sure what mediation is exactly. Maybe every time you look at the notice you become frustrated – your ex is not the “negotiating” type and you think mediation will be a waste of time and you have to miss work or find a babysitter to attend mediation.
First, what is mediation? Mediation is a dispute resolution process where a neutral third party listens to you and your ex and attempts to assist you and your ex resolve your issues. Often times the mediator may help you find a middle ground, but not always. Sometimes people ask for the sun, moon, and stars when all they are entitled to is the moon. A mediator is trained in family law and should be able to identify if you or your ex has an untenable position. One important thing to know about mediation is that a mediator cannot force you or your ex to agree on a resolution. A mediator is not a decision maker. He/she is someone who will meet with both you and your ex (individually and together) to discuss the issues and your position on these issues. Anything that you discuss in mediation cannot be used at trial. In other words, if you take a compromised position at mediation in an effort to resolve the dispute, it cannot be used against you in court and it is not evidence. This special protection is so that you and your ex can both speak freely during mediation and try to reach a compromise.
Why am I required to attend mediation? Family law matters can often be contentious (as you may know) and mediation can assist you and your ex work through your problems and avoid costly litigation and trial. The court recognizes the benefit that mediation can have in family law cases, which is why it requires that you and your ex attend mediation. Mediation, rather than potentially long and bitter litigation, may be the best thing for you, especially if you and your ex have children because you will have to communicate with your ex until your children are grown – there is no time like the present to begin working out your issues.
There are two types of court mandated mediation in family law matters: custody mediation and MESP, which deals with financial matters in divorce cases.
Custody mediation is mandatory if you and your ex have children that are under the age of 18. Custody mediation can occur at the courthouse or at an office building in the county that you live. Attorneys do not attend the court mandated custody mediation. You are permitted to bring along a family member or friend for support, although usually the mediator will not permit your support person in the mediation itself. At custody mediation you will discuss any topics that are in dispute concerning the custody of your children, including: parenting time, vacations, holiday schedule, and extracurricular activities, among other things. I often recommend that clients create a list of topics that they would like to address and what their ideal outcome is in preparation for custody mediation.
If you and your ex are able to reach an agreement on custody, you may not want to sign an agreement that day. I often recommend that clients sleep on it for a night to ensure that they do not have buyers’ remorse the next day. While custody mediation is a non-binding process, if you sign an agreement you may be binding yourself to that agreement. Prior to signing such an agreement, you should always have your attorney review it with you.
Matrimonial Early Settlement Panel (MESP) is another type of mandatory mediation that is required in all New Jersey divorce cases. MESP addresses all of the financial disputes that you and your ex are disputing in your divorce. Prior to MESP you will submit a memo that summarizes your positions. If you have an attorney your attorney will prepare the memo for you. If you do not have an attorney you will follow the sample sent to you with the notice from the court. At MESP your attorney (or you if you do not have an attorney) and your ex’s attorney (or your ex if he/she does not have an attorney) will go before a panel of two experienced family law attorneys and present your positions. The panelists listen to both sides and make a recommendation as to a fair resolution of the financial issues in your case. This is a non-binding process and you are not required to accept the recommendation. If you and your ex both accept the recommendation you can get divorced on the date of the MESP (as long as you do not also have unresolved custody issues). If the recommendation is not accepted by both you and your ex, then the court schedules your case for trial.
One important thing to remember is that while you are required to attend mediation no one can force you to resolve your disputes. If you are able to resolve any or all of your disputes with an agreement that is acceptable to you, congratulations! You are able to move on and start the next chapter in your life. If you are unable to resolve your disputes take what you learned from the mediation and use it to help you prepare for further settlement discussions or a trial. Best of luck!