Edward R. Weinstein, Esq.

Will My New Jersey Divorce Go To Trial?

In short, the answer is not likely. As a New Jersey Divorce Attorney for nearly 2 decades, I am well aware that only approximately 1% of all NJ divorces are resolved via a trial. Adversely, a radically vast amount of New Jersey divorces are resolved by way of a settlement. This is due to a number of reasons, such as the immense expense in connection with engaging in a full-blown trial. Moreover, as explained below, the New Jersey divorce procedure is geared to promote settlements and to avoid trials. The two most significant events that occur during a New Jersey Divorce to facilitate settlements are Early Settlement Panel and Economic Mediation.

In New Jersey, the Family Court has adopted a non-binding arbitration program known as the early settlement program or Early Settlement Panel. I was appointed as a Panelist in Middlesex County, NJ, in 2000. The panels are typically composed of two highly qualified and experienced divorce lawyers that are accustomed to practicing in the county of venue. The judge that is in control will refer certain cases that he or she deems appropriate for the early settlement program. In addition to cases, the presiding judge will usually refer post judgment applications to the early settlement program based upon a stringent assessment of the submitted statements and case information statements provided by each of the divorcing parties. It is also worthy to note that all contested divorces are referred to the early settlement panel.

The New Jersey rule that corresponds to the concept of the Early Settlement Program is Rule 5:5-5. The rule mandates the divorcing parties and their respective lawyers to play a part once the case has been referred to the Early Settlement Panel. Furthermore, rule 5:5-5 mandates the petitioners to contribute their respective case information statement sheets and any other information necessary for the panel to review. If any of the divorcing parties or their respective lawyers do not act in accordance with the early settlement panel’s conditions, it could potentially lead to the assessment of attorney fees. To further that point, failure to comply with the Early Settlement Panel’s requirements could also result in a dismissal of the non-cooperating party’s pleading. The full rule is reproduced below for your convenience.

Rule 5:5-5 Participation in Early Settlement Programs
All vicinages shall establish an Early Settlement Program (ESP), in conjunction with the County Bar Associations, and the Presiding Judges, or designee, shall refer appropriate cases including post-judgment applications to the program based upon review of the pleadings and case information statements submitted by the parties. Parties to cases that have been so referred shall participate in the program as scheduled. The failure of a party to participate in the program or to provide a case information statement or such other required information may result in the assessment of counsel fees and/or dismissal of the non-cooperating party’s pleadings. Not later than five days prior to the scheduled panel session, each party shall be required to provide a submission to the ESP coordinator in the county of venue, with a copy to the designated panelists, if known.

Many of the counties in New Jersey have required forms that must be filled out and submitted prior to participation in the early settlement program. However, some counties do ask the participating parties and their respective lawyers to bring these necessary forms to the panel the day it is scheduled. The most beneficial aspect of participating in the early settlement program is the fact that the panels truly provide the divorcing parties with unbiased opinions in regards to how the presiding judge would decide to rule on the contested issues. After the divorcing parties hear the feedback from the panel members, they are entitled to compare the feedback against the recommendations provides by their attorneys and then can assess the opposing party’s position on each disputed issue.

Some counties in New Jersey have blue ribbon panels instead of the typical early settlement panel. These panels are comprised of more experience divorce lawyers, accountants, tax attorneys, business appraisers, real estate appraisers, and other experts that are willing to volunteer for each unique case. If you believe that some of the contested issues in your personal divorce are perplexing, you are entitled to request a blue ribbon panel prior to the scheduled panel date in order to provide you with the best feedback possible.

Additionally, it is important for divorcing parties participating in the early settlement program to be prepared to answer questions found on a typical early settlement panel statement questionnaire. The following is a list of the most common questions that will be asked of each of the parties in order to best complete the early settlement panel statement form:
• The plaintiff’s name
• The defendant’s name
• The respective attorney(s)
• The issues in dispute including cause of action, custody, alimony, child support, equitable distribution, marital tort, counsel fees, or something else
• The discovery that has been completed
• The discovery that is still in progress
• The discovery that is still needed
• The date of the marriage
• The date of separation
• The date of filing the divorce complaint
• The age of the plaintiff
• The number of children born of the marriage
• The ages of the children born of the marriage
• The plaintiff’s position with regard to the contested issues and proposed settlement
• The defendant’s position with regard to the contested issues and proposed settlement
• Attached copies of any pendente lite orders

Any cases that are still unsettled after the early settlement program is complete are then referred to what the New Jersey courts refer to as Mandatory Post-MESP Economic Mediation. The only way an unresolved case would not be referred to Mandatory Post-MESP Economic Mediation is if there is a restraining order forbidding contact between the two divorcing parties. The corresponding rule for the mandatory mediation is rule 5:5-6 and provides the following:

5:5-6 Participation in Mandatory Post-MESP Mediation or in a Mandatory Post-MESP Complementary Dispute Resolution Event

(a) Mandatory Post-ESP Events. Each vicinage shall establish a program for the post-Early Settlement Program (“ESP”) mediation of the economic aspects of a divorce, dissolution of a civil union or termination of a domestic partnership, consistent with the procedures set forth in these Rules. In any matter in which a settlement is not achieved at the time of the ESP, an order for mediation or other post-ESP Complementary Dispute Resolution (“CDR”) event shall be entered. The order shall provide that the litigants may select a mediator from the statewide-approved list of mediators or select an individual to conduct a post-ESP CDR event. Litigants shall be permitted to select another individual who will conduct a post-ESP mediation event, provided such selection is made within seven days.

(b) Mandatory Two-Hour Minimum Participation. Unless good cause is shown why a particular matter should not be referred to this post-ESP program, litigants shall be required to participate in the program for no more than two hours, consisting of one hour of preparation time by the mediator or other individual conducting the alternate CDR event and one hour of time for the mediation or other CDR event. The litigants will not be charged a fee for the mandatory first two hours of mediation. Participation after the first two hours shall be voluntary.

(c) Allocation of Fees After Two-Hour Minimum. If litigants consent to continue the mediation process, the Economic Mediation Referral Order will determine the distribution of costs for each party for the additional hours. If the litigants choose to participate in an alternate post-ESP CDR event, the fee shall be set by the individual conducting the session. The litigants shall share the cost equally unless otherwise determined by the court. The litigants are required to participate in at least one session of such alternate post-ESP CDR event.

I invite you to contact my office to learn more about the divorce process if you or a loved one may be facing a divorce so we may further explain this process. Thank you.