Guide to Divorce Mediation in New Jersey

Divorcing couples in New Jersey are increasingly turning to mediation as a way to bring down the cost and conflict involved in ending a marriage. In divorce mediation, a trained, neutral professional meets with the couple in an informal setting (either in person or remotely) to guide them through the process of exploring solutions, negotiating, and reaching an agreement on the important issues in their divorce.

When Can You Use Divorce Mediation in New Jersey?

You can use mediation at any point in the process of ending a marriage—including after the divorce is final.

Mediation Before You File for Divorce

If you want to file for an uncontested divorce in New Jersey, you must agree with your spouse about how you'll handle the important issues in your divorce, including:

• the division of marital property and debts
• alimony, and
• if you have minor or dependent children, child custody, parenting time, and child support.

A mediator can help if you and your spouse aren't able to work out all the details on your own. When you choose mediation at the outset of the process, your divorce is likely to be more cooperative and less prone to the kinds of bitter fights that often develop during traditional, contested (or "litigated") divorces.

Also, you can probably complete your divorce quickly and without the expense of hiring lawyers when the pre-filing mediation leads to a complete divorce settlement agreement (commonly called a "property settlement agreement" in New Jersey, even though it covers more than property).

Mediation During the Divorce

If you haven't been able to agree about all the issues in your divorce before filing the complaint, that doesn't mean you can't turn to mediation after your case is in the New Jersey court system. In fact, a judge may require you to participate in mediation (more on that below).

Mediation After a Final Divorce

A final divorce judgment doesn't always put a stop to legal disputes with your ex—especially when you're co-parenting children. These disputes typically come up with one of you wants to move out of New Jersey with the children or change the amount of child support or alimony that was set at the time of the divorce.

Requests to change (or "modify") divorce orders can turn into lengthy, costly court fights, but mediation could help you avoid that. Here again, you might be required to attend mediation (depending on the issue, as discussed below).

When Does New Jersey Require Divorce Mediation?

Any time after you've filed for divorce in New Jersey, the judge may decide to order you and your spouse to attend a mediation session. In addition, there are two circumstances when judges must require divorcing spouses to mediate their disputes:

• Mandatory mediation of custody disputes: Whenever anyone files a divorce complaint or a motion that involves child custody or parenting time, court staff will screen the case to see if the parents have a genuine, substantial custody dispute. If so, the judge must order the parents to participate in custody mediation—except in some cases involving domestic violence (discussed below). You may request to have the mediation requirement waived in your case, but the judge will decide whether you have a good reason.
• Mediation of financial disputes in divorces: When divorcing or already-divorced couples haven't been able to resolve disagreements about financial issues in their divorce—including child support, alimony, and property—New Jersey judges may require them to participate in an alternative dispute resolution process known as an Early Settlement Program (ESP). The ESP process is not the same as mediation: In ESP, spouses go to a hearing in front of a panel of family lawyers, who will hear from both sides, review their documents, and recommend a settlement. If the spouses don't agree to the panel's recommendation, the judge will then order them to attend at least two hours of post-ESP mediation.

(N.J. Rules of Court, rules 1:40-4, 1:40-55, 5:5-5 (2021).)

How Much Does Divorce Mediation Cost in New Jersey?

When a judge has ordered you to attend mediation—and you select a mediator from the court's roster or directory—the first two hours of the mediator's services are free, including one hour of preparation time and a one-hour mediation session. After that first session, you no longer have to continue mediation. But if you haven't reached an agreement and want to keep trying, you'll have to pay the mediator's regular market rate for any additional sessions (unless you qualify for a waiver, based on "poverty"). Generally, you must share the fees equally with your spouse, although a judge might decide to require one of you to pay more than half if that would be fair under the circumstances. (N.J. Rules of Court, rules 1:40-4, 1:40-5 (2012).)

When you choose to mediate your divorce with a private mediator—or you continue after the first free session of court-ordered mediation—the hourly rate is typically about $250-$500 (for mediators who are also attorneys) or $100-$350 (for mediators with other types of training or certification. Mediation services usually charge a flat fee for a certain number of sessions, although they often allow you to pay extra if you need more time.

Many factors affect the total cost of divorce mediation, including the complexity of the issues in your case, the level of conflict or cooperation between you and your spouse, and the extra services provided by the mediator. (For instance, some mediation services may help prepare and file the paperwork to finalize your divorce.) The typical total bill can range from about $3,000 to $8,000 (usually split with your spouse).

If that sounds like a lot of money, it's worth pointing out that the total cost of divorce will almost always be much lower when you reach a settlement through mediation, rather than going to trial. You'll also have more control over the outcome of your divorce, because a judge won't be making the decisions for you. And you'll get to that final divorce judgment much more quickly if you can reach a complete agreement in mediation early in the divorce process.

Is Divorce Mediation Appropriate in Cases Involving Domestic Violence or Other Abuse?

During divorce mediation, both spouses should be able to express their needs and negotiate freely, without fear of bullying or further abuse. That's why mediation is almost always inappropriate for couples who are experiencing ongoing domestic violence or abuse. There are other situations when mediation may not be a good option, including when:

• there's a serious imbalance of power in the marriage, with one spouse bullying or exerting a great deal of control over the other
• one spouse has hidden assets from the other
• a spouse has an untreated substance abuse disorder, or
• there are accusations of child abuse.

New Jersey judges may not order spouses to mediate custody issues in cases where there's an active domestic violence restraining order. In other cases, the mediator or a spouse may file a petition with the court to be released from the mediation order. The judge will grant that request if there's a good reason not to use mediation.

Whenever you're engaged in court-ordered mediation in New Jersey, the session must be stopped if the mediator:

• isn't able to control abusive behavior
• can't overcome a power imbalance between the participants, or
• believes that continuing the mediation would be inappropriate for another reason.

(N.J. Rules of Court, rules 1:40-4, 1:40-5 (2021).)

If you choose to go forward with mediation despite a history of abuse from your spouse, you can request safeguards to protect your safety, including meeting with the mediator separately from your spouse—which is possible even if you use online mediation.

How Does Divorce Mediation Work in New Jersey?

Generally, the mediation process starts with some kind of orientation or introduction, so that you'll know what to expect. When you've been ordered to custody mediation in New Jersey, this will take the form of a required orientation program before the initial mediation session.

Before the actual mediation begins, you'll need to gather information related to the disputed issues in your divorce, such as certain financial documents. Some private mediators or mediation services will ask for this information as part of the initial intake process. Other times, you'll simply bring this material to the first mediation session.

After the orientation and information gathering, mediation usually follows similar stages:

• "framing" the issues by identifying what each spouse wants and needs
• exploring possible solutions to your disagreements, and
• negotiating a settlement agreement.

Mediation in New Jersey is confidential, with very limited exceptions. The mediator may not disclose—to a judge or anyone else—anything you say as part of the mediation, or share any documents you've provided. The exceptions to this rule include:

• information and documents (such as financial statements) that spouses must share as part of the legal divorce process
• when both spouses have given written consent to disclosure of the communication
• when the mediator believes that disclosing the information is necessary to prevent someone from harm (as long as the information could be admitted as evidence in court) or to prevent a spouse from committing a crime that would probably result in death or serious bodily harm, and
• the written, signed form of any agreement the parties reached during mediation.

(N.J. Stat. §§ 2A:23C-4, 2A:23C-5, 2A:23C-8; N.J. Rules of Court, rule 1:40-4 (2021).)

Completing Your New Jersey Divorce After Mediation

At the conclusion of mediation, the mediator will prepare a document that reflects any agreements you've reached with your spouse. Some mediators (especially those who are also lawyers) may also help prepare a formal settlement agreement (sometimes known as a "consent order") and the other final paperwork. If you and your spouse have your own attorneys, they will at least review the consent order and will probably be involved in drafting it. Both spouses need to sign the agreement and have it notarized.

The next step will be to file the settlement agreement and other paperwork (including a proposed final divorce judgment) with the court.

You may need to attend a brief hearing with a judge in order to finalize your divorce. However, under a 2020 directive from the New Jersey courts, local courts should allow spouses to request that their final divorce judgment be issued without a formal hearing when they've submitted a property settlement agreement or final court order that resolves all of the issues in their divorce. If it seems necessary, the judge may schedule a remote hearing by video or phone. (Check with your local court for more information.)

With or without a hearing, the judge will review your agreement and other paperwork. If everything is in order, the judge will make the agreement part of the divorce judgment and sign it. Once the final judgment is entered into court records, your divorce will be final.

What If You Don't Reach an Agreement in Mediation?

You're never required to agree to anything in mediation, even if you've been ordered to participate in the process. If you and your spouse don't reach a complete settlement agreement—whether in early mediation or later on during the legal divorce proceedings (typically through your lawyers)—you'll need to go to trial, where a judge will decide any unresolved issues in your case.