Top Benefit of Mediation During Divorce: It’s Confidential

There are many advantages to choosing mediation when divorcing versus opting for litigation and trial. As our East Brunswick mediation attorneys can explain, the mediation process is often less time-consuming and intimidating and gives you greater flexibility and control over the outcome. Another significant benefit for many couples: It’s private.

In general, all communication exchanged during mediation is confidential, per New Jersey Court Rule 1:40(d), New Jersey Court Rule 1:40(c) and N.J.S.A. 2A:23-C-1 to -13. These provisions state that no party, mediator or other participant in a mediation may disclose any communication in a mediation to anyone who wasn’t a participant. Evidentiary privilege exists for communications/information exchanged during the process, meaning it can’t be presented or shared in court or before a judge in any subsequent proceeding.

Confidential mediation encourages full disclosure of information among those involved. By making mediation confidential and carving out evidentiary privilege, the hope is that any fear these discussions will later be used against anyone is erased, resulting in proceedings that are more open, honest, fair and expedient.

There can, however, be a few exceptions, and it’s important to discuss these with your lawyer. For example, sometimes there are disputes about whether an oral agreement in mediation is binding if it’s not in writing. Sometimes they are, sometimes they aren’t, but the matter may require a Harrington hearing to determine if there was an oral agreement, whether those involved intended for it to be binding and what the terms of the agreement were. To do this, the court needs to know what was said during mediation. Often to avoid this, the attorneys involved exchange letters at the outset of the process agreeing that no arrangement will be considered binding unless it is in writing and both parties have signed.

Any waiver of the privilege or right to keep mediation matters confidential needs to be express, and even then, only the relevant part of those communications may be disclosed.

Other Benefits of New Jersey Divorce Mediation

In addition to private proceedings, there are numerous other benefits to handling a divorce through mediation. These include:

• Informality. Mediation can be much less overwhelming than going to court. The procedural rules aren’t as strict, there is more flexibility and this often leads to people finding a more workable agreement. Parties can more comfortably work out personal issues like allowances, chores, discipline, etc.
• Better for continuing relationship. Divorcing parents or business partners are going to have to continue to deal with each other in a way that is functional and cooperative. Court proceedings tend to be very adversarial, which can increase hostility and break down communication. Mediation is a more cooperative process.
• More efficient, less expensive. Divorce cases can take years to wind their way to trial. Mediation, on the other hand, can result in resolution over a few hours or several sessions over the course of several weeks. This can save you an abundance of time and money.
• Greater satisfaction. According to the American Bar Association, those who participate in mediation are more satisfied with the process compared to those who take their case to trial. Part of this likely has to do with the level of control and active involvement they have in the process. This, in turn, can result in a greater commitment to upholding the terms of the agreement.

If you are considering mediation in your New Jersey divorce, our certified divorce mediators can help.

Call Rozin | Golinder Law today at (732) 377-3367 to speak to our experienced divorce lawyers.