I was a matrimonial Judge for 17 years and presided over approximately 21,000 divorces.
I myself went through a divorce before I became a Judge, and I have helped several of my children through their own divorces. Since leaving the bench, I’ve spent the last nine years mediating hundreds of divorce cases.
I am firmly convinced that mediation – regardless of which side of the divorce equation you are on – is much more preferable, easier, faster, and less expensive than litigating your divorce in a courtroom.
Divorce is not just about the law and evidence; it is about hurt, anger, and mostly about fear – fear of what will happen to you, fear of what will happen to your children, fear of a new financial structure, fear of what a Judge will decide, and fear of the unknown.
In mediation, you have a much greater ability to control the process (and your fear) than you do in litigation, where you are at the mercy of the system. Having a Judge decide your life should be the very last option. A Judge cannot have as intimate an understanding of the nuances and particularities of your life, your children’s needs, and your histories as well as you do.
Mediation Should be Your First Option When Seeking a Divorce
Why do I say that? Four reasons:
- A trial in front of a Judge takes a great deal of time;
- A trial is a very costly process;
- In a trial, you lose much of your opportunity to provide input to impact the outcome; and
- After the trial is over, you still don’t know the outcome. You wait while the Judge makes a decision.
Your trial before your Judge is not the only case on his or her calendar. When I was sitting as a Judge, I was often managing more than 700 divorce cases at a time. Each one required attention. Trial days are not usually contiguous. If your case requires 10 days of trial, that could easily take more than six months.
Trials require lots of legal work, including preparation. Documents have to be reviewed and marked as exhibits. Trial binders need to be prepared; legal briefs have to be written. All of this can be exceptionally costly. And your lawyer and experts are entitled to be paid – usually before all of their work commences.
Finally, after all that time, effort and money, you have no idea what the Judge is going to decide. Thus, you will live with uncertainty for a long time. Judges need to review the documents in evidence, weigh the evidence, and research the law. We need to determine credibility, and then we must cogently articulate the reasons for our decision. And when your decision is finally rendered, for sure you will be somewhat unhappy, because you will not prevail on every single issue. And of course, there is always the prospect of an appeal. Even if you can live with the decision, your former spouse may appeal.
Mediation is a Better Solution to a Trial
Mediation is so much better.
Mediation is so much easier.
That’s because you maintain much more control than when it’s left solely up to the Judge. In mediation, it’s up to you to make decisions – not the Judge. You can weigh and balance and trade concessions with your spouse. You don’t have to hope the Judge remembers a particular fact about your case or a specific piece of information about you or your child.
A skilled mediator will quickly lead you to a potential resolution – or even more than one potential resolution. Ultimately, you get to decide. When you do, you have exercised control over your life. It is more emotionally satisfying, much less costly, and certainly less time-consuming than waiting for a Judge to decide your future.
I have successfully mediated a wide variety of divorce cases involving a myriad of different issues. These issues range from:
Child custody is often the most stressful part of any divorce proceeding. Not knowing when, how often, or where you will see your children can be the most significant source of fear. Instead of a Judge trying to make a Solomon-like decision in a few short minutes, you can spend significant time in mediation focused on and ensuring your divorce agreement addresses your children’s unique needs.
Sophisticated Business Valuations
Many Judges have a difficult time appreciating the nuances unique to your business as they conduct your trial. During mediation, you are afforded significant amounts of time to explain the intricacies and specifics of your business to make certain there is a clear understanding as you, your spouse, and the mediator work toward an agreement.
Establishing Spousal Support
While spousal support relies upon some statutory guidelines, there are almost always unique circumstances which can impact the final support amount. When a Judge makes a decision, it is often after a quick review of the facts of the case. Mediation, on the other hand, affords you the opportunity to spend time negotiating, offering concessions in one area in exchange for trade-offs in another area, and lets you shape an agreement that best suits the special needs of your case.
Division of Assets and Debt
A trial often results in a one-size-fits-all approach to the division of marital assets and debts. To a Judge, this could be the fastest and most attractive approach. But, every marriage contains different accumulations of assets and debts – be they residential property, student loans, retirement accounts, credit card debt, inheritances – that can be more fairly addressed through sensible mediation.
The real value of mediation is that you have the absolute, undivided attention of the mediator who focuses solely on your distinct needs. In a mediation, you have as much time as you need with the mediator to explain. As a litigant in a courtroom, you don’t have that luxury. A mediation is an interactive discussion. You have a voice in the process. You are heard.
I truly understand the pain, fear and confusion involved on all sides as you begin your own divorce process. Mediation allows you to regain control, reduce your fear, and have a much greater say in moving your life forward.
When it Comes to Divorce, You Have Options
If divorce seems to be the only way out of your marriage, it might be well worth your while to investigate the advantages and cost savings of mediation. As described above, mediation gives the divorcing parties greater control over how the marriage is dissolved and can be much less stressful than going to court. To learn if mediation is right for you, give Skoloff & Wolfe a call at (973) 992-0900.
Judge Issenman leads Skoloff & Wolfe’s mediation and arbitration practice. He has practiced law for over 45 years and served 20 years on the bench in the Superior Court Family Division. At the time of his retirement, he was the longest-sitting Family Division Judge in New Jersey, having presided over more than 21,000 divorces. Judge Issenman’s bar admissions include New Jersey, the United States Court of Appeals for the Third Circuit, and the United States Supreme Court.