In many cases, couples have the option of settling their divorce privately through mediation or arbitration. One of these divorce methods may be right for you if you are able to communicate and cooperate with your spouse without having to involve the court. In this podcast, Warren divorce attorney Amy Shimalla outlines the differences and pros and cons of mediation and arbitration, what makes a couple ideal candidates, what’s involved in each process, and much more.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Amy Shimalla, Certified Matrimonial Law Attorney
Amy Shimalla, a partner at the family law firm of Shimalla, Wechsler, Lepp & D’Onofrio, LLP in Warren, New Jersey, has been practicing family law since 1986. As a Certified Matrimonial Law Attorney, trained arbitrator, accredited mediator, and collaborative practitioner, she works to find collaborative solutions that will work for you and your family. Her law firm helps clients who are facing high-asset and complex financial issues, spousal or child support, custody, and other divorce-related issues.
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Read the Transcript of this Podcast Below.
What is the difference between divorce mediation and divorce arbitration?
In mediation, the parties work with a mediator to facilitate their negotiations to reach a resolution of all the issues they have in dispute between them. The parties themselves determine the outcome. In arbitration, the parties choose an arbitrator to act as a fact finder and decision maker, much as a judge would act. The arbitrator decides the issues rather than helping the parties to resolve them.
What are the pros and cons of each of mediation and arbitration?
Mediation and arbitration are very different. Mediation is generally less expensive if the parties choose to attend without lawyers. The parties reach their own agreement. They feel like they own the agreement, and they work with the mediator to get to that point. In arbitration, the parties are retaining a lawyer to make the decisions for them. They are each represented by counsel in that process. It’s more focused on the decision than the resolution. A benefit of both mediation and arbitration is that they are private while litigation is not private. Sessions can be scheduled in accord with the parties’ needs. They can schedule them consecutively; there’s no need to accommodate a judge’s schedule as would be the case in a litigated case.
What makes a couple ideal candidates for either mediation or arbitration?
Anyone is an ideal candidate. No one’s an ideal candidate for litigation, that’s for sure. If the parties can cooperate to some extent, mediation might be the better choice. If they need someone to make decisions for them, arbitration may be the better choice. They may want to try mediation, and if they’re unsuccessful reaching a decision, they can proceed to arbitration. Each option is far better than litigation.
How does someone chose the right mediator or arbitrator?
The parties should check into the mediator’s or arbitrator’s credentials just to make sure they have significant training and experience. When choosing an arbitrator, very often the lawyers will help them make that choice because the lawyers are involved in that process. Likewise, if they consult with their lawyers, they’ll provide recommendations for mediators. There’s also a great deal of information online that they can gather.
Is it possible to achieve a resolution using mediation if a couple is in a high-conflict divorce situation?
A skilled mediator can help even the most high-conflict parties to reach a resolution. This is why it’s important to seek a very experienced mediator. Part of their role is to even the playing field, it’s part of their training to do that.
Is there any advantage to using mediation or arbitration rather than litigation for a high-net-worth case?
Absolutely. It’s far more beneficial to utilize any alternate dispute resolution process rather than litigating any case. Every session is scheduled to accomplish a resolution. When a case is in litigation, the parties and their lawyers often find they are sitting around the courthouse all day accomplishing very little while spending a great deal of time and accruing very significant counsel fees.
If experts are involved in the case, they can be brought into the mediation as well. The idea is to get everyone involved in the process, bring them all to the mediation. The mediator’s going to coordinate that so that a comprehensive settlement can be reached in a very productive manner.
How many mediator sessions does it typically take to resolve all the issues. How frequent are those sessions?
It totally depends on the family and the mediator that they’re dealing with. Sessions are scheduled as frequently as the parties wish. If I had to give an average, I would say maybe three sessions. But some take less, some take far more if experts are involved. The timing is dependent on what the couple needs. Very often we can do mediations into the evening, and we can keep going if we’re making progress, unlike when you’re in litigation and structured by the court’s time frames.
How long does arbitration typically take? Does it usually require multiple sessions as well?
It all depends on the issues at stake. Some of the parties are just arbitrating their personal property and household contents. One session might well be enough, but if they’re arbitrating an entire case, it can take several days.
Is there a difference between court-ordered mediation and private divorce mediation?
Court-ordered mediation very often takes place on the eve of trial with the parties’ attorneys present. Sometimes experts are present as well. Private mediation can take place at any time, and very often it’s without attorneys present early on in the case. It’s up to the parties as to whether they want to have their attorneys at private mediation or not. The process is also different, because in court-ordered mediation, very often the parties have changed discovery and narrow the issues. While in private mediation, it may be the very beginning of the case and information has to be exchanged. Ideas have to be explored on a very different level. It’s really taking the case from square one. They are two very different processes.
How should a divorcing couple prepare for their very first mediation session?
The parties can gather financial information such as assets, debts, and income information. They can also start talking about parenting schedules, the children’s school schedules, but this isn’t necessary. It can be helpful in moving things along, but if it’s intimidating, they can come to the first session and the mediator will discuss with them what information they need to gather. Then they will have more homework to do before the next session. They shouldn’t be afraid to go to mediation because of the information they feel they need to gather. That shouldn’t stop them; they should get the ball rolling and then the mediator will help them gather whatever information they need to reach a resolution.
Does a mediator typically charge as much as a lawyer, or does it depend on their other credentials?
It depends on their credentials. The mediators who I know, who are lawyers, mediators, usually they charge their same hourly rate. It really depends on the mediator, what their credentials are, what their hourly rate is. A more experienced mediator might cost a little bit more, but generally they’re going to have that higher level of experience and expertise that are going to help the parties reach the resolution they need to reach.
Is divorce mediation and arbitration generally less expensive or more expensive than litigation?
Yes, it’s less expensive. In litigation, the costs are exponentially higher because the parties have to attend court appearances such as early settlement panels, case management conferences, intensive settlement conferences, and very often there are motions filed during the process. It’s just a very, very expensive way to reach a resolution. Whereas in mediation or arbitration, we’re very resolution focused, so there’s less time wasted. It’s very efficient. Each session is scheduled with a purpose in mind, and during that entire time you’re working towards resolution.
Will both of the spouses need to retain their own lawyers in addition to working with the mediator?
It’s always recommended that both lawyers have their own lawyers in addition to the mediator because the mediator will guide the parties through the process to help them reach a resolution of all issues. But the mediator can’t give either party express legal advice. They can educate them generally about the law, but it’s always best if the clients are able to resort back to their lawyers for advice and questions they might have. They will ultimately need a lawyer to finalize the divorce, and so the mediator can’t represent them in that process through the court. Some people choose to do it themselves, so it’s really up to them how much interaction they have with their lawyers.
One of the big motivators with arbitration is that you can set a date and have your arbitration on that date. Are things moving very slowly in the New Jersey court system?
Very slowly. Unfortunately, we have a shortage of judges. We have new judges who just work hard and are overworked, and you can wait a year or two years for a trial. When you get a trial, it’s not continuous trial basis, so you may have a date one week and then have a date the next week or next month. It can take months to get through a trial, and then it can take months to get the judge’s decision. When we schedule an arbitration, we can schedule consecutive days, we can have timelines in which the arbitrator is going to issue the opinion.
If I arbitrate a case, I know that I’m going to get the summation from the lawyers 30 days later and then 30 to 45 days later I’m issuing my opinion. The parties are finished much quicker. The whole process goes much quicker. Ultimately, it’s a savings because, even though they’re paying the arbitrator, they’re not paying their lawyers to go back to court again and again and again. It actually ends up saving them money.
How is the arbitrator chosen? Do both of the lawyers consult with each other and come to an agreement as to who should be the arbitrator in the case?
Yes, generally that’s the case, and there is an association of arbitrators in New Jersey, which is a good source to go to. People will go and look at the list of arbitrators and take an arbitrator that both lawyers know and respect.
How are couples left after the mediation process? Are they more complete with their divorce because they’ve used the mediation process? Are they more able to communicate with their soon-to-be ex-spouse?
I would say to you that they are far better off. The agreement they reach is ultimately their own agreement they reached. Nobody’s imposing it on them like would be the case in litigation. They’ve worked through it together, and usually it’s with more respect than they would through the litigation process. Post-divorce, they’re more able to work out issues between themselves, and if they can’t, they reach an impasse, they can circle back to that same mediator.
Very often, couples come back after divorce when kids are going to college, there’s retirement looming, different events are happening. If they can’t resolve it between themselves, they just circle back. We sit down again and we work through those issues. It gives them a way to do it rather than resorting back to the courts again and again. People are broken after they go through litigation. They’re much more whole after they go through the process of mediation.
In terms of arbitration, I think what you said, the two main benefits are: 1) you have control over the time frame that you’re going to go through and 2) you’re guaranteed that the person who’s arbitrating the case is an experienced lawyer who has been at this for a good amount of time. Otherwise, you might get a judge who might be new to the bench in a family law area, and aside from all the delays, they just might not have that knowledge and experience that the arbitrator who is trained is going to have. Would that be true for you?
That’s a very good and very big consideration because the arbitrators that you’re going to pick are going to be people with many years of experience. As you point out, you might be before a judge who never practiced family law. Very often, our new judges are put in family law, so you can have a judge who’s been on the bench for a year or less than a year who’s deciding a family law matter. Going to an arbitrator who has all those years of experience in family law, it’s just a far better place to be.
Another point beyond those that you pointed out is the fact that it’s private and confidential. That’s a very big factor for people, especially people who have significant assets or who have businesses.