by Hanan M. Isaacs, M.A., J.D.
Since January of 2002, our Supreme Court has conducted a divorce mediation pilot program in seven counties. As stated in Appendix XIX to the Rules of Court, incorporating Rule 1:40 by reference, the pilot is now limited to post-Matrimonial Early Settlement Panel cases, unless the parties specifically request earlier referral. This article compares and contrasts private sector and court-referred mediation and assesses the pilot program's strengths and weaknesses as it heads for Supreme Court review and possible statewide application.
Mediation in the Private Sector: A Contrast
Mediation is a process of self-determination, entered by disputing parties with informed consent. Through mediation, disputing parties enter into an agreement that they themselves negotiate. They own the outcome; the mediator supervises the process. National statistics have repeatedly shown that mediated agreements are far more durable and far less litigated post-divorce than attorney-negotiated agreements or litigated decisions.
Post-divorce actions that clog the courts' calendars have their genesis primarily from parties who have become polarized and alienated by adversarial divorces. Professional mediators in the private sector believe that the courts would benefit greatly from an increase in the number of divorces mediated privately. Mediation works best when it begins early in the divorce process, before the parties become polarized by adversarial positioning. In private divorce mediation, all parenting and economic issues are handled together. By working cooperatively, the parties create an outcome that they feel is mutually advantageous. In the traditional adversarial model, the outcome is win/lose.
Attorneys have an essential role in mediation. However, when the parties choose to be self-determining, the role of the attorney shifts to that of counselor rather than advocate. Successful divorce mediations culminate in a memorandum of understanding that the parties take to their attorneys for review. From that point on, the attorneys complete the process.
The mediation process is inherently faster and less expensive than litigation or two-attorney negotiations. To succeed in mediation, both parties must be informed, willing, and able to negotiate. The participants are largely self-selecting.
The New Jersey Association of Professional Mediators ("NJAPM") is the voice of professional divorce and general civil mediators statewide. NJAPM's requirements for accreditation have been carefully developed to protect the public from inexperienced or unqualified practitioners. In addition, NJAPM recognizes the public's need for a system of accountability. Therefore, NJAPM has formally adopted and enforces a Code of Ethics and Professionalism to address consumer complaints. NJAPM recommends that the Supreme Court adopt its more stringent requirements for training and continuing education.
To become an NJAPM accredited mediator, a person must satisfy established education, training and experience requirements. To maintain accreditation, each mediator must participate in a minimum of 10 hours of continuing education annually.
All accredited mediators are encouraged to attend programs outside of their primary profession to develop and enhance a broad range of skills and expertise. For example, divorce mediators not primarily trained in law are encouraged to attend ICLE's annual Family Law Symposium, non-CPA mediators are encouraged to attend programs in tax and accounting, and non-mental health mediators are encouraged to attend programs addressing the psychological aspects of divorce mediation.
NJAPM's continuing education programs are designed to broaden the knowledge base of the attendees by presenting interdisciplinary programs. Every divorce mediator should have an understanding of the law, tax implications, and mental health issues that may arise in any mediation. In addition, NJAPM offers monthly peer consultation and mentoring programs throughout the state. In these programs, mediators present cases for peer review and consultation.
Judge Harper may have been speaking for the courts, the attorneys, and the general public when he suggested that a civil matter once adjudicated is final, but a divorce decree once granted will never be truly over until one of the parties is dead. Mediators believe the mediation process has the power to change that perception and improve the quality of the divorce experience for all parties. Mediators also believe that court-referred mediation will require substantial improvement if it is to succeed in statewide application.
The Divorce Mediation Pilot: What Mediators Want
NJAPM recently conducted a survey of its Accredited Professional Mediator members who also serve on the Supreme Court's roster of pilot program divorce mediators. The survey's purpose was to find out what is and is not working in the current divorce mediation pilot, as viewed by professional mediators. Here is what we learned.
A. Rule 1:40 should be amended to eliminate the "first three hours free" rule.
All of the professional divorce mediators surveyed objected to the "first three hours free" rule. Their objections are based on one or more of the following concerns:
- No other professional is required by the Court to give away three hours of professional time before collecting the first dollar of a fee. All professionals who serve the bench and the public should be fairly compensated for the valuable work they perform. The rule should reflect the respect the Court has for the mediation professionals and the process.
- The Court permits attorneys who participate as advocates in the mediation process to charge for time spent in mediation. It is unfair and discriminatory to require the mediation professionals to resolve without compensation a conflict that the attorneys are being paid to resolve.
- The mediation process is cost effective. A high percentage of mediations under the program have been successful, such that one or more of the previously unresolved issues are resolved in mediation and more appear to resolve shortly thereafter, as a direct result of the process. Cases resolve more quickly and the parties save time and money. Mediators believe that court statistics should consider the mediation successful if the parties settle within 30 days after the mediation.
- Program participants have less respect for programs that are provided free of charge. Mediators have found that they must spend excessive time setting the date and time of the mediation sessions. Attorneys and their clients often show up for mediation sessions unprepared to participate in the process. Some of them appear to attend for "form" rather than "function" and hastily exit once the required three hours are completed. As a result, neither attorneys nor litigants are able to take full advantage of the opportunity being offered to settle the parties' case.
- Attorneys and their clients may not be sufficiently informed about the process in advance. Some attorneys resist participating in mandated mediation, using numerous delaying tactics while they continue to litigate. In addition, some attorneys complain that they cannot mediate because they have not completed discovery, even though mandatory referrals are limited to post-MESP.
- Mediators do not object to serving "pro bono" when one or both of the mediation participants are truly indigent, as defined in R. 1:13-2.
In sum, mediators believe that it is in the best interests of litigants and the courts to encourage participation by the most qualified and experienced mediators that the state has to offer. If court-referred divorce mediation is going to succeed statewide, then the "first three hours free" rule has got to go. At least two highly qualified divorce mediators surveyed indicated they had withdrawn from the pilot program, and several others said they have limited their participation to one or two cases per month, as a direct result of the program issues outlined above. The current rules have discouraged many mediators from participating at all in the pilot program. It is particularly burdensome for mediators who are sole practitioners or practice in small firms
B. The same methodology should be used to select mediators in this program as is currently used in the civil mediation program.
In the civil mediation programs, both pilot and statewide, mediators are selected from a single roster on a rotating basis, subject to party review and substitution within 14 days from date of assignment. In the Family Part program, however, the attorneys do the selecting. Under the civil programs, all the mediators, both attorneys and professionals from other disciplines, are on a single roster list. In the Family Part pilot, there is an "A" list for lawyer-trained mediators and a "B" list for other-trained mediators. NJAPM's mediators believe that the Family Part program practically guarantees that only attorney-trained mediators will be selected to participate. Attorney mediators have a certain set of skills. Non-attorney mediators, including CPA's, therapists, and other professionals, have complementary skills that permit them to help parties resolve issues expeditiously. Since the parties have access to legal counsel, both inside and outside mediation meetings, there is no reason for the system to favor attorney-trained mediators over the other-trained mediators. Moreover, the civil programs, including a presumptive pilot program that is limited to the most complex case assignments, work quite well in making uniform, one-list referrals.
Mediators believe that the parties' attorneys in the Family Part should have the absolute right to select substitute mediators within 14 days from the date of the court assignment, just as they do in the civil mediation programs.
C. The court system and the attorneys should educate the parties about the availability of economic mediation in the private sector, so they do not have to wait until MESP to first learn of its availability. This information should be provided to the parties prior to the initial pleadings and its transmission should be certified by the attorneys in initial pleadings.
When mediation education is presented to parties before divorce proceedings start, the process has not yet polarized them. Mediators believe that parties so educated will tend to exhibit a greater willingness to work out financial and parenting issues and the process of marital dissolution will tend to be faster, easier, and less expensive. When private mediation is used, whether in custody/parenting mediation or economic mediation, parties will take greater ownership of the final agreement and there is a better probability that they will abide by it without returning to court to resolve post-divorce issues.
The Appellate Division's published opinion in Lerner v. Laufer, 2003 WL 1798942, ____ N.J. Super. ____ (App. Div. 2003), decided April 8, 2003, has provided a tremendous boost to mediation's utility, both privately and in the court-referred setting. In a landmark decision in which NJAPM appeared as amicus curiae, the Appellate Division definitively ruled that New Jersey mediation clients and their review counsel may ethically and within standards of expected care define and limit attorney review. That was always NJAPM's view of the law, and it has now been unanimously affirmed.
In Lerner v. Laufer, the Appellate Division recognized that parties in mediation are embarked on a process that differs fundamentally from litigation. By design, the roles of clients and lawyers in mediation are not the same as they would be in a fully adversarial encounter. Clients have the right of self-determination in the negotiation process, whether or not it involves mediation. The Appellate Division has now engrafted that understanding on the practices of divorce mediation and attorney review in this state. The Lerner v. Laufer decision is one of the first in the country to establish a standard of practice for attorneys, where parties use a mediator to structure and monitor the process of decision-making.
The advent of Family Part "best practices", including a systemic commitment to a 12-month divorce process from start to finish, makes mediation in private and court-referred settings more attractive than ever before. We are now seeing an increase in pre-filing, lawyer-referred, private sector mediations, to avoid the post-filing drop deadlines required under "best practices", especially in complex cases.
D. The court system should press for statewide compliance with MESP scheduling at or even before six months.
Mediators believe that one of the major obstacles to resolution in post-MESP mediation is the length of time the parties have been in the process before mediation begins. The longer the waiting period, the more polarized the parties become. The longer children have to deal with the unsettled time between their parents' separation and the time the Marital Settlement Agreement is executed, the more they suffer emotionally and somatically. The more protracted the process, the greater the risk that the children will become pawns of their parents and the more resentment the children may have for one or both of their parents. At the same time, one or both of the parties may suffer unnecessarily. Certainly, the parties remain financially at risk and their resources are predictably drained as the divorce process grinds on.
The Supreme Court made a policy choice in its current pilot program that only post-MESP cases will be mandated to mediation. That being the case, and we accept that it will so remain, mediators nonetheless continue to believe that "earlier is better". Mediators thus believe that MESP should occur no later than six months from date of answer and that mediation should be scheduled promptly thereafter if the case does not settle on MESP day.
E. As improved, the Family Part pilot program in divorce mediation should be expanded statewide.
Once the Court removes the free three-hour rule and consolidates the "two halves" of the current mediator roster into one, many more highly skilled mediation professionals will be willing to participate in the program. Mediators firmly believe that faster and better resolution of divorces will be the result and the load on the court system will be consequently reduced. Mediators also believe that fewer post-divorce matters will come before the courts for resolution, as there is excellent national statistical evidence that mediated matters "stay" settled better than do two-lawyer negotiated or litigated matters.
Finally, mediators are very concerned that Family Part judges outside the pilot vicinages may not be aware that they retain power under R. 1:40 to refer cases to mediation at any time, and that parties may seek mediation referral at any time, both inside and outside the pilot vicinages. Until the Supreme Court decides whether to take the current pilot statewide, mediators want the court system to inform all non-pilot Family Part judges about their ability to make such mandatory referrals; educate them about the mediation process; and to encourage them to encourage parties and legal counsel to consider voluntary referral to mediation, whether under the Rules of Court or privately.
To maximize the success of a statewide, court-referred divorce mediation program, New Jersey's professional mediation community strongly recommends the following:
1. Rule 1:40 should be amended to eliminate the "first three hours free" rule.
2. There should be a single roster for all qualified divorce mediators, and the courts should appoint mediators on a rotating basis, subject to party substitution within 14 days.
3. The courts and attorneys should educate the parties about the availability of pre-MESP mediation in the private sector, and should be required to certify in the initial pleadings that that has been done.
4. The courts should enforce statewide compliance with MESP scheduling of six months or less.
5. The pilot program should be expanded statewide.
6. The courts should adopt NJAPM's requirements for accreditation and continuing education and should consider these to be the benchmark for professional mediators qualified to practice in New Jersey.
The author gratefully acknowledges the contributions of NJAPM's President, George Hays, and President-Elect, Gale Wachs, to the preparation of this article. The errors and omissions are his alone.