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Restraining Orders and Mediation – Balancing the Equities

By:  Deena L. Betze, Esq.

We all know that mediation can be an effective and cost saving tool to resolve family law disputes. This is certainly true with regard to custody and parenting time issues. It is a well-used method for alternative dispute resolution often relied on by judges who otherwise would not be able to handle an already overcrowded docket. Without enough time or resources to try every litigated case, it is common practice for courts to order parties to mediate some or all of their issues both during and after divorce litigation. Similarly, parties who resolve their matters by way of settlement often include mediation clauses in their marital settlement agreements, whereby both parties agree to first submit a future dispute to mediation before either party resorts to motion practice before the court.

 

What then, to do when there is a final restraining order in place? Can mediation ever be utilized when a domestic violence restraining order has been entered against one of the parties?

 

This issue was recently addressed by the Appellate Division in O.P. v. L. G.-P., Docket No. A-0835-in which the lower court had ordered the parties to mediation in reliance upon an agreement to mediate their disputes set forth in their marital settlement agreement. Unfortunately, escalating disputes between the parties following their execution of that agreement and divorce resulted in the entry of a domestic violence restraining order against the plaintiff. The Appellate Court held that the lower court erred by enforcing the mediation provision in the agreement because of the entry of the final restraining order, finding that when a final restraining order entered pursuant to the Act For the Prevention of Domestic Violence is entered contains a no contact provision, a judge in a subsequent proceeding should not urge or encourage the victim to lift or modify that restraint. Thus, the Appellate Panel held that the court cannot order parties to mediation when a final restraining order is in place, for reasons of safety as well as public policy concerns, even where a mediation clause may be set forth in a settlement agreement.

 

There is no question that victims of domestic abuse must be protected and restraining orders previously entered be upheld, even if doing so contravenes the court’s similarly important role in upholding and enforcing marital settlement agreements that are fair and reasonable. However, this decision does not preclude parties from participating in mediation or other alternative dispute resolution techniques to resolve their disputes when a final restraining order exists, under circumstances in which the victim is protected. A restraining order can be amended to allow for a certain measure of communication on limited issues between the parties, for example, so that they can mediate a parenting issue. Certain protections can be put into place to assure the victim’s safety, such as conducting the mediation in “caucus” fashion, in which the parties are in separate rooms and the mediator speaks to them individually, one at a time. Counsel for the parties can be present and participate in the mediation to afford another level of protection to the victim. Accordingly, if the victim chooses to go to mediation, he or she is not precluded from creating a specific amendment to the restraining order to do so, and under the right circumstances, it can still be a very effective method of resolving issues, even where restraints exist.

Lessons I didn’t learn in law school.

By:  Bruce P. Matez, Esq.

Check out this great article written by Jeena Cho. https://lawyerist.com/80492/10-lessons-werent-taught-law-school/

Jeena’s 10 lessons are very interesting and true.  These are all lessons I did not learn in law school and which I have had to learn in practice, many of which took a long time to truly understand, and many of which I continue to work on as a practitioner.  Two of these have particular relevance to the area of divorce and family law.

Having difficult and uncomfortable conversations with clients and other attorneys (opposing counsel in a case) is often one of the most challenging aspects of being a divorce and family law attorney. It is an art form that takes time, effort, patience and practice.

Handling conflict well is probably the most important attribute of being a good divorce and family law attorney and, even more important, being an effective divorce and family law mediator.  As a litigator, lawyers have long standing relationships with their adversaries.  Often clients do not understand this dynamic.  We have to cultivate and nurture those relationships in each of our cases and remember that when one particular difficult, high conflict, perhaps excessively antagonistic and arduous case is over, we will likely have another case with that attorney.  As a result, we often have to balance our ethical obligations relating to the representation of our clients with the need to maintain a healthy relationship with our legal colleagues.  That is incredibly challenging.  I believe that the BEST divorce and family attorneys are those who strike that balance well.  As a mediator, I have to balance the needs and emotions of my clients, and get a feel for how to manage the conflict.  Each couple present very different challenges related to their particular level of conflict.

One of my favorite stories is about the couple whom I met with just before they were scheduled for trial.  They had been in litigation for over a year. They agreed on nothing and had been ordered into mediation by the court to attempt to resolve their financial issues. I asked them at the beginning of the mediation when was the last time they had spoken to each other about the issues in their divorce.  They told me they had been communicating only through their attorneys for over a year and a half.  They had been married for over 25 years and had older children.  As the mediation started they began arguing, getting louder and louder.  I sat back and let them argue for over an hour.  They screamed at each other and both cried at times.  My staff actually knocked on the door several times to assure that everything was ok in the room. After about an hour, at a lull in their arguing, i quietly asked them “are you done and do you want to continue with the mediation?”  They both said they wanted to continue and both acknowledged that they were done arguing and tired.  45 minutes later, they came to an agreement on all of their disputed issues and resolved their divorce.

Conscious Uncoupling- NOT really a new concept.

By:  Bruce P. Matez, Esq.

By now most everyone who follows popular culture or watches the news has heard about Gwyneth Paltrow’s plan  for “conscious uncoupling” from her husband, Chris Martin of Coldplay.  Many are asking what “conscious uncoupling” is.  People have been doing this for many years without the fancy nomenclature.  My partner Gary and I have been helping couples “consciously uncouple” for many years through mediation and collaborative divorce, both generally friendlier and gentler methods of divorcing.  These alternatives to the traditional litigation and adversarial model for divorce have been around for decades and have been gaining in popularity over the last 10 years.  These methods typically help people spend less money on legal fees, maintain good communication and co-parenting, create far less stress and anxiety during the divorce and after, and allow couples (especially parents) to remain respectful toward each other and have a good relationship beyond the divorce.  The decision that couples make about HOW they will divorce can be the most important decision they make because it sets the tone for them, their children, grandchildren, extended families and others for the rest of their lives.  I hope that more couples will take the same route that Gywneth and Chris are going and choose to divorce in a more respectful and “conscious” way.  As Robert Frost said “two roads diverged in a wood, and I, I took the one less traveled by, and that has made all the difference.”  When you are divorcing you can choose which road you’ll take, the traditional litigation road or one that is less contentious and more “conscious.”  Choose the one that will make all the difference like Gwyneth and Chris.

Gary Borger, Esq. Interviewed on Divorce Mediation

CHERRY HILL, NJ, November 7, 2013 – Gary L. Borger, Esq., partner at Borger Matez and one of South Jersey’s most respected family law attorneys, was recently interviewed by Dr. Vicki Handfield on divorce mediation. The interview was aired on Talk Exchange Radio (WTER), a business internet radio show broadcasting from South Jersey. “The station broadcasts segments hosted by prominent, local, regional and national business professionals on industry-specific topics. Guests are local and regional business professionals ranging from employees to CEOs.”

Gary L. Borger has concentrated on family law since entering private practice in 1977, gaining substantial experience in handling complex divorces involving alimony claims, child custody and parenting issues, child support, relocation applications to the court for a parent to move out of state with children, property and debt distribution, and applications to the court for protection from domestic violence and abuse. Mr. Borger also has extensive experience in preparing and negotiating pre-marital and cohabitation agreements. Trained in mediation at Harvard Law School, Mr. Borger offers clients the option of mediating rather than litigating family law disputes between spouses, domestic partners, or significant others. He also has been trained in and practices collaborative divorce, a gentler, less expensive, and quicker way to resolve divorces by agreement reached by the parties directly but in the presence of and with the assistance of their attorneys who commit to settlement rather than litigation of each aspect of ending the marital enterprise and beginning life anew on their own. Mr. Borger is an active and dedicated member of the Family Law Bar serving as a member of the New Jersey State Bar Association, Family Law Section member (former member of the Executive Committee), the Camden County (NJ) Bar Association, Family Law Bench-Bar Committee, the Burlington County (NJ) Bar Association, Family Law Bench-Bar Committee, the Gloucester County (NJ) Bar Association, Family Law Bench-Bar Committee, the Early Settlement Panel (ESP volunteer member) and the American Bar Association’s Family Law Section. Mr. Borger also lectured in family law for 15 years as a guest lecturer in family law at Temple Law School, his alma mater (J.D. 1976) and at educational programs hosted by the American Bar Association, Family Law Section; NJ Institute for Continuing Legal Education (ICLE); the Burlington and Camden County Bar Associations; and The Sharper Lawyer. Mr. Borger is a member of the South Jersey Collaborative Law Group. He received his undergraduate degree from Rutgers University (B.A. 1972).

Borger Matez is one of Southern New Jersey’s leading family law and divorce firms and is a leader in bringing Collaborative Divorce to Southern New Jersey. Located in Cherry Hill, NJ, Borger Matez, P.A concentrates its practice in divorce, custody, parenting time (formerly called “visitation”), alimony, child support, equitable distribution of marital property and debt, post-divorce disputes (i.e., custody/parenting time, alimony and child support modification and enforcement), domestic violence, cases involving the NJ Division of Child Protection and Permanency (formerly DYFS), adoptions, and applications to relocate children from New Jersey incident to or after separation or divorce. The attorneys in the firm also regularly prepare and negotiate all types of pre-marital, cohabitation, same gender, and divorce-related settlement agreements. An extensive list of questions and answers which regularly are asked by family law clients can be found at their website. For more information, call (856) 424-3444 or visit http://www.njfamilylaw.net.

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Gary Borger Bio

Divorce Mediation

Divorce mediation involves parties in a dispute retaining a neutral & trained mediator to serve as a facilitator to assist them in reaching a settlement of the issues in dispute in a safe and amicable setting. Parties (divorcing couples and others) meet together with the mediator, often on a weekly or bi-weekly basis.  During mediation sessions the parties negotiate directly with one another in the presence of the mediator who facilitates the discussions and negotiations, without imposing his/her opinions on the parties or advocating for either. The divorce mediator keeps the parties focused on the issues being discussed and makes sure they address all of the issues which require resolution in their dispute (divorce or other family law matter). Mediation may involve experts or other professionals such as forensic accountants, real estate appraisers, psychologists who serve as custody and parenting-time experts, or others as are necessary and appropriate. Some mediators will allow attorneys to participate in mediation sessions.  In appropriate situations, a coach may also be involved outside of the mediation sessions in order to assist the parties navigate through the emotional turmoil and devastation of divorce or other family law disputes.

Although many mediators are attorneys with family law experience, the mediator does not represent either spouse and should not give any legal advice to the parties. It is recommended that the parties meet with an attorney first to gain an understanding of New Jersey law as it pertains to their specific situation.  In mediation parties are not bound by the law, but can fashion their own settlement terms without regard to what a judge might impose upon them based on the law after trial. This gives parties the freedom to create an agreement that meets their needs and the needs of their entire family, free from the restraints of the law. A mediator should not recommend resolutions which he/she thinks are appropriate, but may make suggestions for the parties to consider.  The parties in mediation have all of the power to reach a settlement and it is what they believe and determine to be fair and reasonable that matters, not what the mediator believes to be fair.

If the parties reach an agreement through mediation, either on all or some issues, the mediator will draft a memorandum of understanding or settlement agreement which memorializes the settlement terms. Parties are encouraged to have independent attorneys draft or review the agreement on their behalf.  Mediators cannot represent either party in court, and therefore, cannot file a complaint for divorce on behalf of either or both parties.

Mediation may not be an appropriate means of dispute resolution if there is an imbalance of negotiating power between the parties, where there are psychological issues with one or both parties, subtle intimidation by one against the other, where there has been as history of domestic abuse, or other issues.

Mediation is an excellent means of resolving disputes in most situations.  It can be far less expensive than the traditional litigation model, especially in divorces.  It can help the parties maintain an amicable relationship, craft a resolution that is best for their entire family, does not only address the present circumstances (which is all the court can do), but also looks forward and addresses the future.  Statistics show that parties who mediate spend less money on their divorce, feel vested in the settlement, are far less likely to engage in litigation in the future, and enjoy a healthier relationship.

Mediation – a sensible alternative

By Gary L. Borger, Esq.

“Mediation.” It’s a word that’s heard and used a lot; but, what does it mean? And, more importantly, what does it mean to someone in the midst of marital turmoil and confusion, or even separation, or divorce?

Mediation can be a less expensive, quicker, less contentious approach to resolving those questions that must be resolved if a marriage must be dissolved and the spouses have the wisdom not to want to give up control of their lives to “the system,” i.e., to lawyers and judges.

First, most mediations are conducted by using one mediator (although there are co-mediations where more than one mediator is involved, such as a man and a woman and/or an attorney and a psychologist).

Second, the mediation is conducted in an office, not at the court house.

Third, the mediator does not make decisions for the spouses. Rather, he or she guides the spouses to address between themselves each decision which the spouses must make to complete a final agreement and get divorced on their own terms.

Fourth, the mediator helps keep the negotiations between the spouses civil and guides them to address each question that must be resolved to have a truly settled case that only needs a judge to dissolve the marriage, not to rule on the many questions that the spouses in mediation resolve between themselves on an out-of-court basis, on their terms which both can accept as fair.

Fifth, although many mediators are attorneys (though they don’t have to be), the mediator should not give legal advice to the spouses such as what likely would happen if the spouses were to go to court for a judge to rule on all their questions about their children, property, and income/support. Rather, optimally (although not necessarily), each spouse will have consulted with his or her individually-retained attorney for legal advice prior to going through the mediation (and, as necessary, to have legal questions answered as the mediation proceeds along).

This is but an outline of what mediation is. Future postings will address how mediation is different than other means of dispute resolution (such as arbitration, negotiation through lawyers, or trial before a judge), and how mediation proceeds from start to finish.

Should I consider mediation of my family law matter?

By John Jones, Esq.

Absolutely! Mediation is a wonderful alternative to litigation. As I say to my mediation clients “Don’t let the marriage made in heaven become the divorce from hell!”

It is important to understand that “mediation” is a word of art – it has a special meaning. Most folks are familiar with “arbitration” and frequently confuse the two procedures. Arbitration is more like a judicial proceeding. The arbitrator selected by the parties hears testimony and the arguments of the lawyers and then makes a decision. That decision can be binding or not, depending on what the parties agreed to before the arbitration started.
Classic mediation is a process in which the mediator uses his/her skills, training and experience to assist the parties to reach their own agreement. The mediator does not make recommendations, give his/her opinions or advice or decide what is good for the parties. There are some mediations, however, where the parties agree that the mediator can be more involved; giving opinions and “steering” the process more than in the classical mediation.

Even though any agreement reached by the parties does not have to be what a judge would do under the law, it is important for each participant to know what is or is not appropriate to ask for. Therefore, it is very important for the parties to have some understanding of the law. That is typically done by attorneys, who are consulted by each party beforehand As long as both parties feel an agreement is fair and adequate for each of them for their own reasons, knowing their options, the mediator has done his/her job.

Each mediation moves at its own pace. Each party pays one-half of the cost of the mediator, based on his/her hourly rate, at the end of each session. Most mediators ask for a retainer from each party, to cover time spent by the mediator outside of session time. For instance, in reviewing documents or preparing memos.

At the end of a successful mediation, the mediator will prepare a “memorandum of understanding,” which sets forth the bare bones agreement of the parties. It is then up to the parties’ lawyers to reduce that to a formal agreement. However, if there are no attorneys, many mediators will prepare the final agreement.

As with any other legal process, when you consult a family law attorney, you should discuss mediation and get a thorough understanding of the entire process.