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AND MEDIATION FOR ALL (ALMOST)

Last week, my colleague at this firm, Padraic Dugan, Esq wrote a blog post discussing the New Jersey Supreme Court’s recent enactment of Rule 5:1-5 which sets forth standards and procedures governing the arbitration of divorce matters. The Supreme Court codified recent case law which had addressed questions arising over the parties’ use of the arbitration process to resolve issues related to their divorce proceeding, rather than continuing to pursue litigation through the court system and having a judge decide the issues in their case. In so doing, the Supreme Court was furthering the policy that has evolved in recent years encouraging the use of complimentary or alternative dispute resolution (ADR) proceedings as a means to help parties settle cases and/or divert cases from a growingly overburdened judicial system. Besides the enactment of these Arbitration Rules, this policy goal has been highlighted further by the Supreme Court’s recent directive relaxing the requirements of R. 1:40-5 (b)(1) so as to allow litigants as part of a pilot program in six counties to participate in mandatory economic mediation of matrimonial matters, notwithstanding the existence of a Final Domestic Violence Restraining Order between them, and which had been prohibited in the past. While there are exceptions, and given that the victim of domestic violence must still consent to participate, it is clear that the expansion of the use of complimentary or alternative dispute resolution proceedings in family law matters remains an overriding objective of the Courts.

Only a Court can grant a divorce. A Court can also decide issues of custody and parenting time, alimony and child support, the distribution of property, as well as other claims incident to the dissolution of a marriage. However, a Court need not decide those issues if the parties themselves have the power to resolve them – and in the vast majority of cases, they do. Often the parties are able to settle their financial and custodial disputes, either with or without the assistance of counsel, during the course of an ongoing litigation process. Over recent years, the judicial system has encouraged the use of complimentary or alternative dispute resolution proceedings including mediation and/or arbitration as a means to help parties resolve their cases. Besides the salutary effect of settlements on the overtaxed judicial calendar and resources, the public policy favoring the use of consensual agreements to resolve marital controversies  is also in recognition that the parties themselves are often in a better position to determine how to resolve their disputes and how to minimize the financial drain on family resources from continual litigation. Indeed, the 2006 amendment to R. 5:4-2 (h), requiring litigants to acknowledge their having been informed of the availability of these alternative and/or complementary dispute resolution methods at the time the filed their initial pleading, reflected a commitment by the Supreme Court to encouraging the use of same.

What is arbitration? In an arbitration proceeding an impartial third party decides issues in a case. The parties select the Arbitrator and agree on which issues the Arbitrator will decide. The parties also agree in advance whether the Arbitrator’s decisions will be binding on them or instead treated merely as a recommendation. While not necessarily required to be utilized, there are two Statutes which are normally utilized, to wit the Uniform Arbitration Act, N.J.S.A. 2A: 23B-1 et seq. and the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A: 23A-1 et seq., which provide the framework for such Arbitration proceedings. While an arbitrator may decide issues within a divorce case, it is the family court which must still make the final determination as to whether to grant a Judgment of Divorce itself.

What is Mediation? Generally, Mediation is a means of resolving differences with the help of a trained, impartial third party. The parties, whether with or without lawyers are brought together by a Mediator in a neutral setting. A Mediator does not represent either side nor offer legal advice. The parties are encouraged to retain an attorney to advise them of their rights during the mediation process. The Mediator helps the parties identify the issues, gather the information they need to make for an informed decisions, and communicate so that they can find a solution agreeable to both. Mediation is designed to facilitate settlement in an informal, non-adversarial manner. The nature of the mediation process itself suggests that the parties be able to work together and communicate for it to be successful. Unlike Arbitration, mediators do not “decide” issues in dispute. The Court maintains a roster of approved Mediators or the parties can select their own, including utilization of private mediation services.

Generally speaking, the mediation of family law matters in New Jersey falls into two categories, “voluntary” or “mandatory”.  Persons in a family or family-type relationship, be they married couples, divorce couples, cohabitants, unmarried couples with children, etc can mutually agree to retain the services of a Mediator to assist them in resolving parenting and/or financial issues in dispute. There does not have to be an actively pending litigation in order to pursue mediation. Often, parties who wish to avoid an adversarial posture with each other consciously choose to pursue mediation, whether with or without the assistance of counsel, to avoid the pursuit of litigation, except as necessary to finalize the divorce itself. Even parties to an actively pending divorce litigation can mutually agree to pursue mediation. It is this process which I characterize as “voluntary” mediation. There are still rules and procedures which govern this mediation process, such as confidentiality, the details of which are not the subject of this post. However, this is not “voluntary” mediation which is the subject of the Supreme Court’s Rule relaxation referenced earlier, but rather, the requirement to participate in “mandatory” economic mediation pursuant to R. 5:5-6 and R. 1:40-5.

After a divorce or dissolution action is filed with the court, and after allowing a certain amount of time for “discovery” to be completed, a case is scheduled for participation in a proceeding known as the Early Settlement Program or ESP, as it is commonly referred, by which the parties and/or their counsel would appear before a “panel” of usually two volunteer family law attorneys. During the ESP each party provides a brief summary of the issues in dispute and their position for settlement, and the Panel will then make non-binding settlement recommendations. If the case is settled, the parties could be divorced that day; however, if a settlement is not achieved at the time of the ESP, an Order is entered requiring the parties to pursue mandatory economic mediation or other post-ESP Complimentary Dispute Resolution event pursuant to R. 5:5-6 and R. 1:40-5 (b)(1). After selecting from a list of statewide approved mediators, unless good cause is shown, litigants are required to participate in this post-ESP program for a mandatory 2 hour minimum. R. 5:5-6 (b). However, R. 1:40-5 (b)(1) expressly exempted from participation in this mandatory post-ESP Mediation such cases where “a temporary or final Restraining Order is in effect in the matter pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.)” In creating this exemption, the Court was clearly of the view at that juncture that the policy of protecting the domestic violence victim from further victimization and assuring the victim’s safety and well being overrode the policy encouraging the use of alternative dispute resolution proceedings to resolve cases. Further, the nature of the Mediation itself seemed to militate against such participation when a Restraining Order was in effect given the general need of both parties to communicate and work with each other to foster a resolution of their issues.

However, by establishing the Pilot Program so as to relax this provision of R. 1: 40-5(b)(1) so as to allow matters to be referred to post-ESP economic mediation notwithstanding the existence of a Final Domestic Violence Restraining Order, the Supreme Court is now clearly of the view that in appropriate circumstances, these competing policies could co-exist – – – increasing the cases participating in this post-ESP economic mediation process while doing so in a manner ensuring the safety of the domestic violence victim. In its “Notice to the Bar” regarding the establishment of this Pilot Program it was reasoned:

“The Judiciary recognizes that the use of mediation may be effective to promptly resolve economic disputes without the necessity of dismissing a domestic violence Final Restraining Order in appropriate cases. Mediation can be an effective tool in bringing prompt resolution to economic disputes in appropriate cases in which a domestic violence Final Restraining Order has been issued. Without Mediation as an available tool, these matters often conclude in a trial, which may further exacerbate the relationship of the parties and prolong the resolution. Another possible consequence of the current policy of non-mediation is that victims must dismiss the Final Restraining Order in order to participate in economic mediation.”

First of all, participation in this Pilot Program is limited to those matters in which there is a final Restraining Order in place and where there is the consent of the victim. Cases where there is a temporary Restraining Order in effect were not to be deemed to be appropriate for inclusion in the Pilot Program. Also excluded from Mediation are cases in which there is a contempt charge or where there has been a conviction for a violation of the Final Restraining Order.

The counties participating in this Pilot Program are Essex, Mercer, Middlesex, Morris, Ocean and Somerset counties. While the process and procedures governing how these mediations are to be conducted are being worked out, assuring the safety of the domestic violence victim is a primary goal. First, it is expected that only matters in which both parties are represented by counsel will be referred to this Program. Further, while economic mediation is generally conducted at the Mediator’s office, which is viewed as a “neutral” location and is also a convenience to the Mediator and a way to minimize fees, the mediation of these matters will be conducted at the courthouse. This mediation will take place in two separate rooms so that the parties do not need to be in the presence of the other, and with the Mediator shuffling back and forth between the two rooms.  A Sheriff’s Officer is also to be present to assure the safety and well being of the domestic violence victim as well as enforcement of the Final Restraining Order.

Recognizing that the participation in this Pilot Program is only limited to those matters in which there is a domestic violence Final Restraining Order and which still requires the consent of the victim thereto, the breadth of cases which will truly be effected is unclear. It will be curious to see how many cases actually participate and of the success rate of those which do, which by their nature are higher conflict cases than most. Will it be enough to expand this Pilot Program? Time will tell. However, given the judicial system’s continuing efforts to expand the use of alternative and/or complimentary dispute resolution proceedings, in the absence of a spate of violent or abusive incidents during or an overriding negative reaction to the process, my bet is that it will be.