My Case Did Not Resolve at Early Settlement Panel. Now What?

In one of our prior posts, we discussed the importance of the Early Settlement Panel (ESP) and how the panelists can help you resolve your case. However, not all cases successfully resolve at ESP. If your case doesn’t resolve, what comes next?

If the panelists are unsuccessful at resolving your case, you and your attorney will return to the judge assigned to your case. According to court rules, the next step is to select a mediator and schedule a date to attend mediation. You and your ex can either agree on a mediator, or, if you cannot agree, the court will appoint one. The mediator is usually another attorney experienced in family law, or a retired judge, who can help to find ways to settle your case. Either way, the judge will issue a “Post-MESP” (Matrimonial ESP) Order. That order will explain the terms for mediation, including the following:

Paying the mediator: Unlike ESP, mediation is not free. However, since the mediator is appointed by the Court (even if you and your spouse agree on who should be appointed), the parties are not charged by the mediator for the first 2 hours of mediation. The first hour is usually spent by the mediator reviewing paperwork each attorney will provide setting forth their arguments in support of your/your spouse’s positions in the case and documents to be reviewed, but that will usually leave you with at least one hour of actual mediation at no charge with the mediator. The Post-MESP Order will also set forth how the mediator is to be paid if you go past the two free hours. That designation will usually be in percentages (for example, each party pays 50%, or one party pays 100%, or that it is to be paid from marital assets, without prejudice.)

Date for mediation: The court will also usually set a date for the first mediation session, or set forth a time frame within which the first mediation session must take place. You have to find date(s) that work for both of the parties, as well as each of the attorneys, and, of course, the mediator. Many mediators have to book mediations more than a month out, and sometimes even further. Sometimes, even when you have a date on the order, that date may change because of someone’s schedule. The important thing is to try to get an agreeable date as quickly as possible, so you can hopefully get it “on the schedule” and everyone will be ready by that date.

Next Steps in Court: The order will also set a date for a status conference with the judge, which is to occur after the mediation session. During that conference, the attorneys let the court know whether the case is settled or not, or if there is something else that needs to be done. If the parties set another mediation session because they are making progress, the mediator will typically contact the judge to re-schedule the status conference until after mediation.

If the case is resolved in mediation then the status conference with the judge is often converted to an uncontested divorce hearing, at which the judge will hear testimony confirming that the parties have reached agreement on all issues and will then divorce the parties. If mediation does not resolve the case, then the judge will schedule a date for all parties, with their attorneys, to appear for an Intensive Settlement Conference (ISC). This is another important step before trial that can help resolve cases, and will be discussed in more detail in another blog.

If you or someone you know has any questions regarding these issues or other family law, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222. We are ready to help you reach a resolution that works for you and your family.

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