Divorce Mediation in New Jersey - Pro's & Con's

         The idea of Divorce Mediation as a tool  to resolving disputes between parties less expensively then through litigation is to be applauded and supported. But the problem with Divorce Mediation ( at least in New Jersey) focuses on the qualifications of the person holding herself out as the mediator.         

            By way of background, the idea of divorce mediation is that both parties meet together with an agreed upon individual, who holds himself out as having a specific skill set to guide parties through the various questions that would normally be presented by either or both parties in a divorce setting and he makes recommendations to them on how to resolve those issues for purposes of preparing a formal divorce settlement agreement. For mediation to be successful, both parties need to approach the process by putting their faith in the qualifications of the mediator and in the competence of his recommendations.

            On its face, the idea of attempting to resolve any and all marital dispute in a less litigious forum is a good thing to be lauded. But when parties put their faith in someone holding himself out as a divorce mediator, how would / could they know his qualifications for the position? Unfortunately, anyone can take a 1/ 2 day course on divorce mediation and then hang out a shingle; representing himself to the world as a  "qualified" divorce mediator. In reality, he  is not qualified and would have no idea what a judge would do if the particular issue was presented for a resolution. Therein lies the rub.

             When parties appear for mediation, their plan is to try to resolve issues outstanding in a peaceful fashion....but to do so, they also need to know what would happen if that issue was presented to the court and the court was forced to resolve it. Without knowing their "downside" and their respective "exposure", how can they know if their position is reasonable or not?

             Unfortunately, too often today family law attorneys are  reviewing proposed divorce settlement agreements prepared by ill experienced mediators, where the terms violate  applicable case law ( which translates into a setting where the provision would be viewed by the court as "void per se" under NJ law if challenged at a later date) and / or border on being unconscionable.

             In the past several months alone, I have reviewed at least 3 such proposed divorce settlement agreements where I was forced to advise the consultation that the document presented was a mine field with more potential problems then actual solutions. As examples, in two such documents, the mediator incorporated an automatic escalator provision for support; which term is viewed in NJ as "void per se"... which means that if one party is forced to file an application with the court for enforcement of that provision, the NJ Court will not enforce same.

              Similarly, in a 3rd such proposed agreement, the wife was being asked to accept a alimony plan for a lesser duration and for a dramatically lesser amount  then what she receive if the  issue was  presented to the court.In response, this woman was shocked,   indicating that her husband told her and the mediator that they would never settle unless she agreed to take an alimony deal less then "permanent" and at an amount that he was willing to pay. When asked what her understanding was of what she would have been entitled to by way of alimony, if presented to the court, she candidly stated that she had no idea nor could the mediator provide her with any guidance as to what she would receive by way of alimony if the issue went before the court. What!

              To place my concern about the last example in its proper perspective, the setting presented was where the parties had been married for about 19 years and the Husband's current income setting ( as well as his income setting over the past several years) ran about  340,000.00 per annum and the Wife had not worked for the past 13 years. Prior thereto, the Wife worked in a clerical capacity earning less then 20,000.00 per annum. Similarly, Wife had limited computer skills and a limited educational background ( and she had stopped working to raise the parties 2 children). Yet with this fact pattern, the proposed form of divorce settlement agreement provided Wife with a "limited" duration alimony plan for 10 years ( which would put Wife at age 51  when the support terminates) and 24,000.00 per annum of alimony during that duration ( with the expectation that Wife could return to full time employment earning about 25,000.00 per annum).

                Translated.... based on her work background, etc and Husband's income setting ( and being 43 years old), that proposal bordered on being "unconscionable" and I could not fathom this women doing this "badly" on her  alimony claim if this issue was presented to the court for a resolution. In fact, based on the facts presented, it was clear to me that this was and is a "permanent alimony" matter and that the proper range for her alimony award should have been between 75,000.00 per annum ( on the low side) and around 105,000.00 per annum the high side ( with the decision on the actual annual amount between those 2 numbers focused on the actual life style while the parties lived together, the spending pattern of the marriage, the saving and investment plan of the marriage, and consideration of the  other statutory factors  required to be considered). Somehow, despite pressing the mediator for guidance as to what she would be entitled to if presented to the court, the mediator continually told her that it was impossible for him to provide guidance or to give her a range since such decisions are purely discretionary with each judge. Wrong! What this mediator was really saying is that he has no idea what a judge would do since he had no / limited experience with the family court system.

                    Simply stated, the divorce mediation process works and can be beneficial as long as the mediator is properly trained and has the requisite skill set to provide proper guidance to the parties as to what is fair and permissible and what is outside the range of reasonableness. In selecting a mediator, it is therefore essential to ask questions of the mediator as to his background and qualifications for the particular type of issues that will be presented in your matter.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

Comments

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[Kimi]

What are your thoughts on clueops showing their affection in public?I think everyone has had the opportunity to see straight clueops kissing and showing their affection to each other in public.Except for a very few cities in the USA, as a gay or lesbian couple, do you feel that you do not have the same opportunity to show your affection to your partner?Personally, I don't particularly want to see a guy girl making out in public, if I don't have the same opportunity to do the same with my boyfriend with being bashed.

[Carl]

Divorce mediation is a process which is done to make settlement between both the spouses regarding their divorce. But it is only possible and will get successful if both the spouses agree for it. And if the reason for a divorce is physical torture then divorce mediation is not helpful.

[Authogseste]

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A Framework to Think of Aid Delivery Methods

Aid delivery methods have had many "names" over the past 50 years ranging from projects, to programmes, to integrated development projects, to sector approaches, to sector budget support or direct budget support. In this plethora of "titles", donors are not agreeing amongst themselves. In addition, countries and practitioners are sometimes confused, if not lost. They have to redefine the meaning of the words used for every assignment. In this situation, how can one begin to discuss content rather than form? In some situations, donors even argue against the words used in their own financing agreement, spinning a definition of their support that is not included in the title (such as a financing agreement giving entitlement to budget support, but being considered as programme support). Clearly, this is not only confusing for the practitioners but also misleading for countries in terms of aid flow http://sportsstarse.webs.com predictability, control and reporting. aid management, increasing the transaction costs. It does not support a basis for donor coordination and harmonisation and certainly does not allow easy and practical aggregation of data.

A simple classification framework may thus be useful for aid delivery methods. This can be constructed to allow for the classification of:

The first objective can be responded to: domestic revenue shortfalls do not allow the delivery of the basic services required for socio-economic development (achieving the Millennium Development Goals) and for the economy to generate sufficient broad-based wealth to raise revenues. Governments are committed to such developments whether to their citizens or http://fitnessandbeautys.webs.com through ratifying international agreements. Therefore aid is provided to support service delivery until governments' own revenues have increased sufficiently and budget processes and stakeholders recognised the importance of the objectives to allocate necessary resources. The responsibility for setting standards on service delivery is a shared one between countries, citizens and donors<>].

The underlying principle of aid is thus to work within a country to support the delivery of services by directly providing these services (substitution) or by reinforcing the means to deliver the services (investments, reforms, technical cooperation, etc) through government's systems and procedures.

Thus independent of the aid delivery method chosen, the resources channelled that meet this intent, should be "on-budget". They can be broadly categorized as a form of support to a government's budget, as the prime instrument to implement its policies, either through cash or through goods, works and services being purchased. This prevents the governments having to mobilize these resources through domestic revenue collection or debt. Yet accounting for them through the budget system is still required to ensure that the government is accountable to its citizens, taxpayers and aid beneficiaries http://latestsportsnews.webs.com (three groups which largely over-lap each other). This is independent of the form the aid takes, how the aid is managed and who delivers http://fitnessandbeautys.webs.com the services.

Ultimately, donors may want to work with governments to support and/or influence their policy-making processes. This puts http://latestsportsnews.webs.com the emphasis on long-term objectives and achievements that are best measured by citizens' satisfaction (hence the link to the political process) rather than by simple quantitative measures of outputs.

Any other aid delivery method that does not seek to substitute to or to enhance a government's service delivery and activities should be considered "off budget", independent of the provider and of how aid is managed. Two categories can be broadly defined: Direct Budget Support and Indirect Budget Support. Such a classification though formal, would help the dialogue amongst donors and with partner countries, especially when appraising the potential impact of aid on the country' institutions and the objectives that can be reasonably pursued. Even if the focus changes to be centred on the final beneficiary rather than the institutional arrangement (as in the case of cash transfers in Baluchistan and North West Frontier Province in Paskistan), one could still make the case that it constitutes a different form of procurement for delivering services.

The test for the classification should be one condition:

Does the financial flow enter the economy through the government's financial systems (the Treasury or the financial systems of a line ministry, for example, the Ministry of Health) or does it enter it through contracts for works, goods and services procured to implement the support (paid for directly by the aid agency<>])?

Any support that is non-financial will necessarily be Indirect Budget Support. In any situation where the support is financial but does not go through the government's financial systems, it is termed indirect budget support. If an aid method qualifies as budget support, but is not reflected in the budget and its accounting and reporting instruments, for lack of an adequate budget process or lack of donor information, the definition remains the same, but the practice is found not to be in compliance with the commitments given in the Paris Declaration and the Accra Agenda. This places a particular onus on donors to provide adequate information on their support (including accounting standards, classification, timeliness and periodicity).

When financial support is provided through the government's financial systems, it is http://entertainmentgoodnews.webs.com considered to be Direct Budget Support, irrespective of the conditions laid down in the financing agreement, which may place more or less emphasis on a particular sector.

<>] This also implies that creating pressures on governments to address service delivery in new areas or for new beneficiary groups imply that donors take a responsibility in providing sufficient resources for a sufficient transition period.

<>] Flows entering through the Single Treasury Account are direct budget support. a ministry's account, are also direct budget support.