Many clients believe that if they file for divorce, the road to resolution is litigation and a trial. While naturally, that is the final step if a settlement is not reached, divorce trials are reasonably uncommon in New Jersey. In fact, in most years, only 2% – 3% of cases are tried. Of those, many settle during trial or at the proverbial courthouse steps.
The system is designed with many steps to push matters toward settlement. One family court judge has expressed pride that she has never had a trial. That’s not great either, because some cases need a judicial decision, but the point is that settlement generally is the desired goal. Moreover, clients often say they are more satisfied and that there is less post-judgment litigation when parties settle matters themselves.
There are settlement processes built into the divorce system. The first is mandatory custody and parenting time mediation if parties have unemancipated children and there is no written agreement settling custody and parenting time. This is typically handled by court staff and without attorneys present. That said, it always makes sense for parties to prepare for this mediation with their attorney before attending.
As to the financial issues, after discovery — the exchange of financial and other information as well as expert reports such as business valuations and real estate appraisals — is completed, there is a mandatory Early Settlement Panel (ESP). For the ESP, your case is presented to a panel of two or three experienced matrimonial attorneys who are volunteering their time to help settle cases. After reading the written submissions and hearing from counsel, the panelists provide non-binding and confidential recommendations (i.e., the judge doesn’t get to know about them.) For complex cases, there are often Blue-Ribbon Panels, where the cases are presented to more experienced attorneys.
If the case isn’t settled at ESP, the next step is mandatory economic mediation for which the first two hours are free. Mediation is a longer format before a neutral where you try to settle your case. For complex cases, sometimes we try to bypass ESP and go right to mediation. In fact, you don’t need to wait for ESP to go to mediation — by agreement, you can go at any time.
If the case is not settled after ESP, many counties have Intensive Settlement Conferences (ISC) in which you spend the day at the courthouse with your judge trying to settle the case. Some judges require you to come back over and over, either to wear you down, or because you are getting closer to resolution. Only after all else fails, do you have a trial. As I will write in the next edition, sometimes trials are necessary. That said, the system provides for many off ramps to settle your case before you get to that point.
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