Courts are very public places and court documents are public as well. It is relatively rare to have a closed hearing or sealed court documents. Mediation, by contrast, involves closed proceedings, which offer the benefit of keeping your personal and financial affairs out of public view. It is important to note, however, that a final agreement made part of a court order may be be a public document.
Due to the nature of our legal system, judges must follow certain rules when deciding cases. The types of relief (solutions) that a judge can order as the result of litigation are limited. You and your spouse can probably think of several better and more creative approaches to your problem than a judge is likely to impose. This isn’t because judges can’t think creatively – most judges would probably love to find the ideal solution to your problem. But some of the best solutions aren’t available to a judge who must follow the written law and what other judges have decided. The flexibility you have to reach your own result is one of the greatest benefits of choosing mediation.
The role a consulting attorney plays in mediation is very different from litigation. Important steps, like the investigation and sharing of evidence, are more informal. This reduces the cost and complexity of a case. Consulting attorneys advise you about your legal rights and the consequences of mediated agreements. This requires less time (and fewer fees) than the traditional attorney role. There is no incentive for attorneys to litigate beyond what is necessary to satisfy both parties. Some estimate that the cost of mediation can be from one-third to one-half that of litigation. This can be particularly important in a case, such as divorce, where the costs of resolving the dispute are likely to be drawn from shared assets.
The formal procedures lawyers undertake in litigation are not only more costly, they also take more time. Built-in time delays can be kept to a minimum by informally sharing information. You can set the pace for the proceedings, rather than relying on a court, and mediators will have more time to handle your case than judges. Delays which can last for months are cut down, and there’s no danger that your case will be continued for lack of a judge’s available time.
Does this mean that mediation is always the answer? No, however mediations are generally worth exploring.
Marc P. Feldman’s Divorce Mediation Center of New Jersey serves clients in Parsippany, Morristown, Morris Township, Morris Plains, Dover, Rockaway, Roxbury, ,Madison, Florham Park, Chester, Boonton, Chatham, Denville, Hanover, Florham Park, Kinnelon, Mendham, Mount Olive and all of Bergen County, Essex County, Hudson County, Middlesex County, Morris County, Passaic County, Somerset County, and Union County, New Jersey.