Throughout approximately the first half of my 20-year career as a divorce attorney, it was extremely difficult to settle cases prior to trial. This is due to the fact that New Jersey did not have any court mandated mediation prior the trial date set for the divorce case. Fortunately, the state judiciary committee ultimately approved pre-trial economic mediation. As this mediation event is court ordered, it is mandatory.
A Post ESP (Early Settlement Panel) Economic Mediation order allows the parties to designate a mediator (usually agreed upon between the two lawyers handling the divorce case) who is selected from a court approved list of mediators. The mediator shall devote two hours without any charge. The first hour is usually used by the mediator to prepare for the upcoming mediation by reviewing the Mediation Statements submitted by each attorney, respectively. After the first two free hours, both spouses must pay the mediator their hourly rate.
In my experience as a New Jersey lawyer, Economic Mediation is a great way to save the parties’ a tremendous amount of money in legal fees as divorce trials are extremely expensive. Furthermore, the court approved Mediators are skilled at the “art of negotiation” especially in the highly emotional realm of divorce law. When the spouses are able to communicate in a calm and civil manner, we all sit in the mediator’s conference room and hammer out an agreement. In high-conflict cases, an experienced mediator will know that it will be much more productive to keep the parties separated in separate rooms (with the lawyers, respectively) in order to avoid any unnecessary arguing that will only thwart settlement discussions.
I would like to be clear that the litigants of a New Jersey divorce are only required to participate in at least one session. However, while the Mediator shall likely make a recommendation as to what they deems to be a fair and equitable global settlement of the divorce action, neither party is required to accept this recommendation. In that case, they may proceed to a trial. However, my associate attorneys at my law firm all vehemently agree that the Economic Mediation program plays a major role in helping spouses come to agreements in settling their divorce, as opposed to a “stranger in a robe” making that decision for them.
Following, please find a sample “Pre-Trial Order Post-MESP” that a Family Court judge will ultimately sign into law, again directing the parties to attend Economic Mediation. Of course, to learn more, please feel free to contact my office with any questions that you may have. Thank you.
__________________, Esq. ID #
LAW OFFICES OF EDWARD R. WEINSTEIN, LLC
Weinstein Professional Building
214 Highway 18 North, Suite 2A
East Brunswick, New Jersey 08816
Attorneys for _____________
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION-FAMILY PART MIDDLESEX VICINAGE
v. DOCKET NO. FM-12- ------
Defendant, PRE-TRIAL ORDER POST-MESP
This matter having been opened to the Court by Case Management Conference;
, appearing for plaintiff, and appearing for defendant; and for good cause having been shown:
IT IS on this---
__________________day of----- 2015;
1. This Order is entered pursuant to R.1:40-5(b).
2. The above-captioned matter is hereby referred to the Post-MESP Mediation Program pursuant to R .5:5-6.
3. Post-mediation next event:
a. If the matter is not settled at economic mediation, attendance will be required by trial counsel and the parties at a pre-trial conference to be held
. The court at that time will determine the
b. The trial date is ________________________________________
4. is designated as the mediator. The mediator was selected from the statewide approval list or a person chosen by the parties to conduct the mediation at the parties' discretion. The mediator shall serve on a pro bono basis for the initial two hours of service, which includes reasonable preparation time (one hour), and the first mediation session (one hour). After the first two hours, the mediator shall be compensated at the mediator's hourly rate, together with reasonable expenses. The mediator's fee shall be paid by the parties as follows: Plaintiff _____% and Defendant _____%. Payment shall be made as billed, unless other arrangements are made with the mediator. Any outstanding bills shall be paid within ______ days of receipt. Either party may opt out of the mediation process after the first two hours.
5. After the first session ordered herein, the date(s), time(s) and place(s) of the mediation session(s) shall be set by the mediator selected or appointed in this matter
6. The appearance of attorneys at mediation shall be as agreed to by the parties in consultation with the mediator. The Court expects and requires all litigants and their attorneys (if applicable) to participate in the mediation sessions in good faith. The parties shall cooperate in providing accurate and complete information to the mediator including, but not limited to, tax returns, Case Information Statements and appraisal reports.
7. Termination of mediation generally shall be governed
by R.1 :40-4(f).
8. Upon termination of the mediation process, the mediator shall promptly report to the Court in writing whether or not the case is settled. If the case is not fully
settled, then the mediator shall provide to the Court and the parties notice of which issues are settled and which issues remain open within fourteen (14) days.
9. Unless otherwise agreed by the parties, and subject to R, l :40-4(c), all mediation proceedings shall be confidential and non-evidential. No verbatim record shall be made thereof.
Judge, Superior Court of New JerseyFIRST MEDIATION SESSION:*
(Date & Time)
*Attorneys please provide mediator with parties' Case Information Statements and ESP Statements prior to the first mediation session. Self-represented litigants must also provide the mediator with this information prior to the first mediation session.
MEDIATOR NAME, ADDRESS AND TELEPHONE N UMBER:
or Plaintiff s Name, Address and Telephone Number (unless confidential)
or Defendant's Name, Address an Telephone Number (unless confidential)