Article by Daniel A. Levy, Esq.
Whenever I work on Family Law cases involving divorce and/or custody issues, clients are always concerned about how long the process will take, and how much it will cost. In fact, I recently wrote two articles on those exact topics: How much does it cost to get divorced in New Jersey; and How long does it take to get divorced in New Jersey. And now I want to cap off the series with some information about how to avoid going to court and resolving divorce and custody issues through alternative dispute resolution.
Alternative dispute resolution (known as “ADR”) is a term that refers to resolving a dispute without having a trial or hearing before a judge. It’s a very broad term and it is used in many different areas of the law. As we are specifically talking about divorce and custody issues, I want to go over the ADR options as they specifically related to these types of disputes.
The most basic type of alternative dispute resolution is a simple conference with the parties involved and their attorneys. Essentially, the attorneys gather relevant documents from their clients, which are exchanged, and everyone talks out their positions with the goal of achieving a compromise. If the parties have reasonable expectations and are able to work together, this is a great way to resolve disputes very early in the process and quickly. If it’s a divorce, the parties can negotiate a whole divorce agreement this way, and then just go to court to get an order of divorce with an order directing the parties to abide by the agreement. If it’s a post-divorce dispute or a custody/visitation dispute, a written agreement may be enough and court could be avoided entirely in many cases. But in other cases you may still need to go to court to get an order that simply memorializes the agreement.
If the parties want to work together but they just need some help to get to a compromise, they can enlist the services of a neutral third-party (a very experienced attorney or retired family court judge) who can help them come to an agreement. This is called mediation and it is used very often in various types of cases in family court. Sometimes, parties getting divorced (or if they are not married but have custody disputes) will go to mediation before filing a complaint or motion with the court and the mediator will assist them in resolving the dispute. Successful mediation in that regard will result in a full agreement to resolve the entire matter, and the parties only need to go to court to get an order of divorce with an order directing the parties to abide by the agreement.
If it’s a divorce case or a non-divorce custody/visitation case and someone already filed papers with the court, the judge will refer the parties to mediation in the courthouse to resolve custody/visitation with a mediator. In divorce and post-divorce cases, parties will also be ordered to attend economic mediation if they cannot resolve the dispute on their own. The mediator’s job is not to take sides. Rather, mediators are there to help parties compromise. Even if someone files papers with the court and has no immediate interest in compromise, most cases typically settle at one time or another through mediation-driven agreement. This is because most people would rather decide for themselves how they want the case to end up rather than spend significant time and money going to a trial and having a judge decide for them.
Finally, there is also an option to go to arbitration. This is a process where a retired judge will hear your dispute, take testimony, review documents, and come to a binding decision about the issue. Unlike mediation, this is not a process to come to an agreement, but rather the arbitrator will decide who wins and who loses and a decision is made by the arbitrator. While this might sound a lot like having a trial in court (and it is), from a cost perspective it is almost always cheaper to go to arbitration, and it is certainly faster. Once you get an award, all you need to do is file papers with the court to enforce the award.
Clients who have a divorce or custody dispute should discuss ADR possibilities with their attorneys. In fact, the court rules require all attorneys in divorce cases to give written advice about the availability of these ADR methods. Using ADR tools early on in the process will almost always save a client significant money and time.