EFFECTIVE IMMEDIATELY, JUDITH KUSKIN HAS SUSPENDED
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FREQUENTLY ASKED QUESTIONS
WHAT ARE THE BENEFITS OF MEDIATION?
WHAT IS A “SUCCESSFUL” DIVORCE OR SEPARATION?
ARE WE REQUIRED TO SIGN AN AGREEMENT TO MEDIATE BEFORE WE BEGIN?
WHY SHOULD MEDIATION WORK FOR ME IF MY PARTNER AND I COULD NOT COMMUNICATE DURING THE MARRIAGE?
DOES MEDIATION REQUIRE THAT I BE IN THE SAME ROOM WITH MY PARTNER?
ARE MEDIATION SESSIONS COMPLETELY CONFIDENTIAL?
IF THE MEDIATOR IS ALSO AN ATTORNEY, CAN SHE GIVE LEGAL ADVICE AND COUNSEL?
IF I USE A MEDIATOR, DO I ALSO NEED AN ATTORNEY?
DOES MEDIATION PREVENT ME FROM EVER GOING TO COURT?
WE HAVE ALREADY STARTED TO LITIGATE OUR DIVORCE, IS IT TOO LATE FOR MEDIATION?
DOES THE MEDIATOR PREPARE THE LEGAL DIVORCE PAPERS?
DOES MEDIATION WORK IN ALL CASES OF DIVORCE AND SEPARATION?
WHAT IF I AM INTERESTED IN MEDIATION, BUT MY PARTNER WANTS TO LITIGATE?
I AM INTERESTED IN LEARNING MORE ABOUT MEDIATION, HOW CAN I GET STARTED?
WHAT IS MEDIATION?
Mediation is a problem solving method in which a neutral and impartial third person (the mediator) helps the couple to resolve the difficult issues involved in separation and divorce.
WHO IS MEDIATION FOR?
Mediation is for
• Married couples who have made a decision to
divorce
• Married or unmarried couples who want a separation
• Domestic partners who want a separation
• Divorced or separated couples with post divorce or separation disputes
WHAT ARE THE BENEFITS OF MEDIATION?
Mediation is confidential, informal and much less expensive than conventional divorce processes. Mediated divorces are successful divorces because the couple (and not the attorneys or the judge) makes the final decisions about their future arrangements. When both parties agree to work together toward a common goal, time, money and emotional costs are considerably less than those of a typical contested divorce.
WHAT IS A “SUCCESSFUL” DIVORCE OR SEPARATION?
In a successful divorce or separation, you will
• Save thousands of dollars in legal fees
• Emerge from the divorce with your self respect intact
• Save months and possibly years of legal warfare and delays
• Continue to co parent your children
• Be able to move forward with your life
•
Be committed to following your agreement with your “ex”
•
Have methods for solving parenting or financial problems with your “ex” after
the divorce or separation is final
HOW DOES MEDIATION WORK?
Your mediator will help identify the issues and possible solutions to those issues that you need to resolve for a successful divorce or separation. Typically these issues include a parenting plan, child support, alimony and division of your assets and liabilities. You will be guided through the decision making process to create agreements that work for both of you.
After you have reached an agreement on all relevant issues your mediator will prepare a detailed written document called a Memorandum of Understanding (the “MOU”). After you are satisfied that the MOU accurately sets forth your agreement, you bring it to your respective attorney for review. The MOU then forms the basis for the Property Settlement Agreement, which is filed with the court.
HOW LONG DOES MEDIATION TAKE?
In almost all cases, mediation takes much less time than litigation.
Divorce mediation can take from three to fifteen sessions
depending on each couple’s commitment to the process and the complexity
of the parenting and financial issues to be decided.
Each couple determines
the pace and rate of progress.
ARE WE REQUIRED TO SIGN AN AGREEMENT TO MEDIATE BEFORE WE BEGIN?
Yes. Before you begin mediation, you and your spouse or partner sign an Agreement to Mediate. This Agreement addresses such issues as confidentiality of the process, the mediator’s neutrality, the voluntary nature of mediation and fees.
WHY SHOULD MEDIATION WORK FOR ME IF MY PARTNER AND I COULD NOT COMMUNICATE DURING THE MARRIAGE?
Mediation can work for you if you are willing to look for a fair way to settle the issues that have to be decided. You don’t have to be best friends to mediate. All you need is the willingness to have an agreement that you both can live with in the next phase of your life.
Mediation gives you the opportunity to have your needs and wants discussed. Many couples find that mediation helps them to communicate better especially if they intend to co-parent their children.
DOES MEDIATION REQUIRE THAT I BE IN THE SAME ROOM WITH MY PARTNER?
Most mediation sessions are conducted with both of you present at the same time. However, there are times when it is advisable for us to meet in individual sessions. These individual sessions ( sometimes referred to as “caucuses” ) allow productive discussions to take place without the hostility that could develop between you and your partner.
The matters that we discuss in these caucuses are confidential and will not be repeated to your partner or spouse unless you consent to their disclosure.
ARE MEDIATION SESSIONS COMPLETELY CONFIDENTIAL?
Yes, unless the mediator learns of acts or threats of a dangerous or criminal nature that must be reported to the authorities, all discussions and offers of compromise and settlement made in mediation sessions are completely confidential. This means that if no final agreement is reached between you and your spouse or partner, the mediator is not permitted to disclose any of the communications made in connection with the mediation. Similarly, the mediator cannot be compelled to testify in court in a divorce action between you and your spouse.
Most mediation sessions are conducted with both of you present at the same time. However, there are times when it is advisable for me to meet with each of you separately. The matters that we discuss in these individual sessions or caucuses are confidential and will not be repeated to your partner or spouse unless you consent to their disclosure.
IF THE MEDIATOR IS ALSO AN ATTORNEY, CAN SHE GIVE LEGAL ADVICE AND COUNSEL?
No. The role of mediator is restricted to neutrality. The mediator cannot advocate or take sides for you or your spouse or partner. A mediator is not a substitute for having your own attorney. Your attorney’s job is make sure that your legal rights are protected. Your attorney is trained to defend your individual interests under the law. This legal positioning may at times increase the conflict between you and your spouse or partner.
The training to become an attorney and a mediator are very different. Mediators are professionals (from a variety of backgrounds) trained to act as neutral parties. The role of the mediator is to help the two of you communicate and reach an agreement. The mediator’s role is to reduce the adversity and resolve the conflicts regarding issues of divorce and separation. Although the mediator may be familiar with divorce law (and in some cases is a divorce attorney for other couples in a conventional divorce), she or he may not offer legal counsel when mediating.
IF I USE A MEDIATOR, DO I ALSO NEED AN ATTORNEY?
Since divorce involves legal questions, it is important for you to understand your legal rights before you agree to a settlement.
In mediation, it is in each party’s interest to seek independent legal counsel. The role of the attorney will be generally limited to providing legal advice, reviewing the agreements between you and your partner or spouse and preparing the legal documents to be filed with a court. It is important that the attorney you choose is “mediator friendly” and one that will not try to undo the work that you did in mediation. I can assist you in finding a “mediator friendly” attorney. If you so request, I am willing to speak to your attorney to clarify concerns that may arise in mediation. You are welcome to have your attorney accompany you to mediation sessions. Your attorney may provide you with guidance to resolve some of the necessary issues. However this may not be very cost effective because you will need to pay your attorney’s hourly rate as well as the cost of the mediation session.
Some couples prefer to do some independent legal research as well. It is best to follow up this research with legal review with a family law or matrimonial attorney before signing the agreement that resulted from mediation.
DOES MEDIATION PREVENT ME FROM EVER GOING TO COURT?
No. Unless mandated by a judge in a litigated divorce, mediation is completely voluntary. You and your spouse or partner is free to withdraw at any time and pursue your divorce through the traditional court system.
WE HAVE ALREADY STARTED TO LITIGATE OUR DIVORCE, IS IT TOO LATE FOR MEDIATION?
No. Mediation can occur at any point, before, during or after the separation or divorce. If you and your spouse or partner still have unresolved issues, it is not too late to begin mediation. Many couples begin mediation after they have been in litigation. They request that their attorneys put the process on hold while they explore whether resolution is possible through mediation.
DOES THE MEDIATOR PREPARE THE LEGAL DIVORCE PAPERS?
No. In New Jersey, the same professional cannot act as both your mediator and as your family law attorney.
After you have completed your mediation sessions, your mediator will prepare a detailed document called a Memorandum of Understanding or MOU. This MOU describes all of the points and agreements that you reached in the mediation. It is usually about 10 pages long. One or both of you can give this MOU to your attorney for review. One of your attorneys will then use this MOU to prepare the necessary paper work to file in court. If necessary, your attorney may appear with you in court for a very brief appearance to finalize the divorce.
DOES MEDIATION WORK IN ALL CASES OF DIVORCE AND SEPARATION?
Mediation works for many couples even those who are very angry with each
other.
However, there are some situations when mediation is not a favorable alternative
to litigation. For example, if you or your partner refuse to provide financial
information about your joint assets or debts, a mutually acceptable division
of property cannot occur. Or if you or your partner is unable or unwilling
to make a decision, a fair and equitable agreement cannot be reached. Or
if you do not feel free to speak your mind without fear of consequences,
mediation cannot be successful.
If you are wondering if mediation is right for you, contact the NJ Association of Professional Mediators at www.njapm.org to search for a mediator that is right for you and your partner.
WHAT IF I AM INTERESTED IN MEDIATION, BUT MY PARTNER WANTS TO LITIGATE?
It is possible that your partner needs more information about mediation before making a decision. If you or your partner would like to find out if mediation is appropriate for both of you,contact the NJ Association of Professional Mediators at www.njapm.org to search for a mediator that is right for you and your partner.
I AM INTERESTED IN LEARNING MORE ABOUT MEDIATION, HOW CAN I GET STARTED?
To find out if mediation is appropriate for you and your partner, contact the NJ Association of Professional Mediators at www.njapm.org to search for a mediator that is right for you and your partner.