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Confidentiality in New Jersey divorce mediation

Many divorcing couples in New Jersey and across the country turn to mediation to help them resolve their divorce matters. Mediation can offer a quicker and more cost-effective process than traditional litigation, while also allowing a couple to craft an agreement specific to the unique circumstances of their family. The civil discussions which take place in mediation are often less damaging to the relationship than the high conflict of litigation, which can be a significant benefit for parents who will need to continue working together to raise their children.

The mediation process involves an impartial third party, called the mediator, who facilitates negotiations. The mediator does not decide the outcome of the case, but rather guides a divorcing couple toward mutually agreeable resolutions.

The importance of confidentiality in mediation

The purpose of mediation is to offer spouses an opportunity to:

  • Work with a professional who is familiar with the law to guide them toward a resolution which addresses the details of all financial and child-related issues involved in divorce;
  • Discuss underlying concerns in a setting constructed by the skillset of the mediator, which promotes open discussion, healthy communication and a focus on problem-solving;
  • Identify terms on which the parties agree and disagree, allowing the mediator to utilize his/her knowledge, training and skills to assist the parties in resolving their disputes while remaining impartial;
  • Develop creative solutions to their disagreements that are tailored to their particular situation and family; and
  • Prepare a Memorandum of Understanding detailing the terms agreed upon in mediation that will be used post the mediation process to develop a thorough contract to be signed by the parties.

A Memorandum of Understanding is a document written at the conclusion of a mediation to memorialize the terms of the agreement discussed during the mediation and will be used to develop a thorough contract that will eventually be signed by the parties. The Memorandum of Understanding outlines the obligations, entitlements and responsibilities of each party. The "MOU," however, is typically not signed and therefore not binding on the parties. It will later be converted into a contract that will become binding once signed by both parties.

For this to work, both spouses must be able to communicate openly and honestly and share information that is helpful to reaching resolutions while all information being kept confidential. It is therefore critical to the success of mediation that spouses are assured the conversations are private so they feel comfortable speaking freely. This is why what is said in mediation is considered confidential. What happens during mediation usually cannot be disclosed after the mediation is complete.

Agreements reached in mediation may need to be handled with care

A New Jersey Appellate court recently examined the potential limitations of confidentiality in divorce mediation. The court held that, unless signed by both parties, a written Memorandum of Understanding (MOU) is confidential and therefore unenforceable in court.

In the recent case before the New Jersey Appellate Division, the court was asked to determine if an MOU was accurate. Although the mediator prepared and signed the MOU, the spouses had not signed it. The court determined that the contents of the MOU were confidential because it had not been signed by the parties. The confidentiality could only be broken if both parties agreed; their mediation discussions could not otherwise be conveyed to the court.

Mediation can offer a divorcing couple many benefits, including a swift, amicable and cost-effective resolution. While the concept of confidentiality in mediation may be complicated in a few situations, the ability to speak openly under the protection of confidentiality is critical to its success. It helps encourage honest dialogue to move spouses closer to resolving disputes.

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