Linwood, New Jersey family lawyer Cynthia Ann Brassington is certified by the Supreme Court of New Jersey as a matrimonial law attorney, and helps people resolve their divorce related issues across all areas of the process. In this podcast Cynthia answers questions regarding the benefits of using mediation during divorce, the time commitment required for mediation, and the pros and cons of collaborative divorce.
Guest speaker: Cynthia Ann Brassington, Matrimonial Law Attorney
A panelist on the Matrimonial Early Settlement Panels in both Atlantic and Cape May Counties, Cynthia has also taught family law as an adjunct professor for Atlantic Cape Community College. She is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney, and she also practices as a divorce mediator and collaborative lawyer.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
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Read the Transcript of this Podcast Below.
Alternative Dispute Resolution In New Jersey
Diana Shepherd: What is divorce mediation and how does it work?
Cynthia Ann Brassington: Mediation is a form of dispute resolution. It’s a process when two people, or two parties, agree to meet with a neutral person, usually an attorney or mediator, to address the division of their assets, their debts, child custody, spousal or child support.
Sometimes the parties meet with me without counsel and sometimes they meet me with counsel. When I represent a client in mediation I sometimes do not attend the mediation and I prepare my client in advance. Sometimes I attend the mediation. It really depends on what the client needs and their desires and whether or not they want to incur the expense of having me present during a mediation.
The parties agree in mediation that they will not file the confidentiality of the mediation so that they could have a frank discussion about their respective needs and how they want to resolve the case. Mediation is valuable as the parties can enter into an agreement beyond what a court would do and the mediation gives them the framework to have a very detailed parenting plan.
If a divorcing couple can’t even be in the same room without fighting, can they still mediate their divorce?
They can, and I do try to get couples to sit in the same room because one of the benefits of mediation is the client’s ability to learn to communicate in a healthy manner. If one party is trying to instigate the other party into an argument, I step in and explain that it is not helpful to use the time to argue when we are there to resolve disputes. If they are arguing it may be that one or both of the parties is hurt and I try to give them an opportunity to vet a bit but keep it under control. I have found through the years of mediation that parties will calm down and commence the mediation process once they have the opportunity to speak their minds.
Does every divorce related issue have to be resolved during mediation or can a couple choose to focus only on particular issues during their mediation sessions?
That is entirely up to the parties as to what they want to work out. I usually start with the financial issues and the division of assets and debts, and once trust is starting to develop I move to the custody and support issues. Parties have the option of only addressing one or two issues such as custody and parenting time. But I have found that once the process begins they want to go all the way and complete the process.
Can you mediate a case where there are major power and maybe even knowledge imbalances between the couple, or where there’s been domestic violence during the marriage?
There are usually imbalances of power just as there are in the marriage. That is one of the benefits of mediation as the disempowered spouse finds his or her voice and becomes part of the process of resolution. I do not allow one spouse to bully the other, and I encourage both parties to speak up.
However if there is a temporary or final restraining order, the court cannot order the parties into mediation. The victim must be protected and therefore unless the parties have a court order that amends their restraining order to allow that contact, mediation cannot take place. The parties can be separated and the mediator can go back and forth from one room to the other, and attorneys can also be present. In certain circumstances mediation is a beneficial way for the parties to resolve their dispute.
How long does a typical mediation process take? Are there a number of sessions that are generally required to reach an agreement?
How long mediation takes depends on the parties. Some mediations are resolved in one or two sessions and I draw up an agreement. Other mediations may take several months. The benefit of mediation is that the parties set the pace within their respective comfort levels. The sessions themselves are also dependent on the parties, some sessions are one or two hours, but I have done mediations that have taken all day.
As a Certified Matrimonial Law Attorney, do you give legal advice to your mediation clients?
I do not give legal advice as a mediator because I am not an advocate for either of the parties. However, I can tell the parties generally what would happen in specific circumstances, such as that a pension is subject to equitable distribution and I can also explain how the pension is divided.
Can you mediate a high-net-worth divorce? If so, are there any advantages of using mediation rather than litigation for, let’s say a high asset divorce case?
Of course high-net-worth cases can be mediated and it is a very effective way to resolve the case. Mediation usually is less expensive than litigation which further benefits the parties. The parties select a neutral forensic evaluator if we need an evaluation of a business. And since the neutral is working for both parties they are more likely to accept the expert’s opinion.
We use the same process for the evaluation of real estate. The parties are then able to enter into an agreement that the court could not do if the matter was decided by the court, thereby enabling the parties to design the settlement agreement that is in their best interest. In other words, mediation enables parties to think outside the box.
Is there a difference between court-ordered mediation and private mediation?
There is no difference between the two. Private mediation or court ordered mediation are both addressed in the same fashion, with one exception. When a court orders mediation under the court rules, the first two hours are dealt with by the mediator not charging the parties. Therefore, when I am appointed as a mediator I receive an order from the court. I then contact the party’s counsel with a retaining agreement that provides that the first two hours will not charged.
I tell the attorneys what documents I need, they forward them to me and I then spend one hour reviewing the pleadings or whatever documentation I receive, such as financial documents. Then I spend one hour with the parties and the respective attorneys. After one hour we stop and then if they decide they want to continue I am then retained at that point to continue in the mediation process, otherwise the process is generally the same.
One other difference is when I have a court ordered mediation. When the matter is resolved, the attorneys then draw up the agreement, as opposed to a private mediation when I don’t have attorneys I draw up the agreement.
Collaborative law is another form of alternative dispute resolution for divorce. Can you tell us how collaborative law differs from divorce mediation?
A collaborative law divorce is different than mediation in that in the collaborative process, the dispute is resolved without litigation pending, such as a complaint for divorce. The way to think of a collaborative divorce is as a team effort. The parties and their counsel meet and discuss the case.
When an expert is needed, the expert is brought in as a neutral professional. This can be a certified public accountant or a mental health professional. Then the mental health professional or the expert is involved and assists the parties as we move forward.
If either party files for divorce while the collaborative divorce is pending, the process will then be terminated and each party will have to obtain new counsel. There is an evidentiary privilege in a collaborative divorce as well as a mediation that protects disclosure of the communications that occur during the collaborative or mediation process.
If a divorce complaint is filed and the collaborative process stops, the parties have to then discharge their counsel and start their case over again. This really does encourage the parties to continue in a collaborative law process. An easy way to think of this is this: in the collaborative law process, we deal with the entire divorce before either party files for divorce.
How does the role of the attorney differ between litigation and collaborative law, because in both each party has an attorney with them. How does that role differ?
It’s dealt with differently in that while the attorneys remain advocates for the clients, it is approached more as a team effort, one of communication. For example in the first session of a collaborative divorce we sit down with the parties and the clients, and the four of us will then say okay, let’s begin, what do we need? We’d approach it as a team effort. The documents are presented, there’s an open discussion and even though sometimes the emotions still arise during a collaborative divorce as they do in litigation, again it’s just more of a team effort in trying to reach that resolution with an understanding that it’s to the parties mutual benefit as opposed to each party trying to get a leg up in the litigation process.
So, in collaborative law, if I’m hearing you right, the attorneys function more as coaches helping the two divorcing spouses to reach resolution, rather than say as advocates who are going to be slugging it out in court?
That is one way to look at it, although we do retain being advocates for our clients. We work hard for our client’s benefit. We try to look at it more as a collaborative fashion. Instead of looking at spousal support only though my client’s eyes as to what my client needs, I will also look at spousal support through the other party’s eyes as to their ability to pay that spousal support, so that we’re looking at the agreement that these parties have to live with over a long period of time that they can live with together.
When people enter into an agreement and it’s one that they both have agreed to and they both worked hard considering their needs as well as the other party’s needs, they’re going to be more likely to live by that agreement. And with the goal of the parties being more cooperative in the future, with better communication especially when we’re dealing with children.
So, Cynthia, what makes a couple an ideal couple for mediation, versus collaborative law?
I think most couples are ideal for both mediation and collaborative law. The difference is when you’re in mediation a complaint’s been filed and you are in litigation. You have the deadlines of the court hanging over you. In the collaborative law process you can work within your own pace, and therefore you don’t have the deadlines hanging over you.
Also, in the collaborative process remember that if one party decides to then file for divorce, the collaborative process stops and both parties must retain new counsel. Then all that work is not effective for the parties and their resolution. So, that keeps the parties wanting to maintain in the collaborative process.
I would encourage parties to look at collaborative law as a process, prior to filing the complaint of divorce because it enables them to move into the divorce process more as a team effort than feeling that one party is getting the hammer of litigation hanging over them.
If they are in litigation, then I encourage those parties to enter into mediation. However some parties don’t want to resolve a dispute, they don’t want to go down that route, and in those cases of course we have to engage in litigation.