Phillips Nizer LLP | Custody Mediation In Court, As Seen in the <em >Morris County Women’s J</em >ournal (June/July 2004)<br > Jan L. Bernstein, Esq.
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Custody Mediation In Court, As Seen in the Morris County Women’s Journal (June/July 2004)
Jan L. Bernstein, Esq.

07/11/2004
If you find yourself in court over a custody or parenting time dispute, help is on the way. Each court has at least one custody mediator available, free of charge, to assist parents with their custody and parenting time disputes.

Mediation is a form of alternative dispute resolution in which a neutral third party, or mediator, attempts to help the disputing parties reach a mutually agreeable solution. Mediation is non-binding in the sense that if the parties are unable to reach an agreement, the matter is referred back to the court. If, however, the mediation results in a signed agreement between the parties, this agreement is binding upon both parties. Court custody mediation is covered by the New Jersey Court Rule 1:40-5.

Under New Jersey law, all cases involving a “genuine and substantial” custody or parenting time issue must be submitted to mediation. The only exception to this Rule is that in cases in which an order of domestic violence has been entered, the matter will not be referred to mediation. In cases involving domestic violence where no domestic violence order has been entered, or in cases involving child or sexual abuse, the custody and parenting time issues will be referred to mediation, but the domestic violence, child and/or sexual abuse issues will not be mediated in the process.

Either party or the mediator may petition the court for removal of the case from mediation. The party petitioning for removal must make a showing of good cause as to why the case should be removed from mediation.

The Mediation Process
Parties whose cases are referred to mediation must attend a mediation orientation program and may also be required to attend an initial mediation session. The mediation session itself is closed to the public-only the disputing parties and the mediator may be present. The Court Rules recommend that the parties and the mediator discuss whether it is appropriate for children to be involved in the mediation session. Non-parties may be admitted upon the consent of the parties and the mediator.

The mediation session begins with an opening statement by the mediator to explain the purpose of the mediation process, and to outline the procedure for the mediation session. Each party will then have an opportunity to speak and discuss his or her issues. Multiple mediation sessions may be held if progress is being made.

Termination of Mediation
The mediation session may be terminated by either party or by the mediator. There are several reasons why mediation may be terminated. In some instances, termination is mandatory. For example, the mediator must terminate the session if he or she believes a party is under the influence of drugs or alcohol, believes continued mediation is inappropriate or dangerous, or if the parties are unwilling or unable to have an effective discussion.

There are also instances where termination is at the discretion of the mediator or the parties. The mediator or either party may terminate the mediation session if there is an imbalance of power between the parties, if a party challenges the impartiality of the mediator, if there is abusive behavior that cannot be controlled, or if a party resists the mediation process or the mediator.

Privacy of Communications Made During Mediation
In order to encourage parties to participate in mediation, and to ensure that disclosures made by parties during mediation cannot be used against them in a future court action, the New Jersey Court Rules provide many safeguards designed to protect the parties’ privacy.

Absent the parties’ consent, all disclosures made in the course of court custody mediation are confidential and cannot be admissible as evidence against a party in any future proceeding. However, a mediator has a duty to disclose any information obtained during a mediation session that leads the mediator to reasonably believe that a party plans to commit a criminal or illegal act likely to result in death or serious bodily harm.

The mediator is barred from participating in any later trial or hearing concerning the mediated matter. The mediator is also barred from appearing as a witness or counsel for any individual in the mediated matter, or any related matter. Finally, mediators cannot play any role other than mediator. They cannot act as evaluators for any court-ordered reports or make any recommendations concerning custody and parenting time concerning the mediated matter.

In addition to court custody mediation, there are many other kinds of mediation available to assist you in resolving domestic relations issues. There are private mediators, who parties can contact to resolve one or all of their outstanding domestic relations issues. There are also other types of court ordered mediators. There are economic mediators, for example, attorneys who assist parties in resolving economic disputes. No matter which type of mediation you use, however, each party will need independent counsel to ensure that their rights are protected. So talk to your lawyer about the various avenues available to you in resolving your domestic relations disputes outside of court.