WHAT IS AN EARLY SETTLEMENT PANEL?
The Matrimonial Early Settlement Panel program (MESP) is a State mandated program to help matrimonial litigants resolve their financial and related issues with the assistance of unbiased experienced matrimonial attorneys after discovery has been completed. The purpose of the panel is to help litigants resolve their matters fairly quickly and to help them avoid the costs of further litigation and trial.
WHO SERVES ON THE PANEL?
Three Experienced matrimonial attorneys serve on the MESP. The panelists, who volunteer their time, have at least five years matrimonial experience. In addition, a significant portion of their practice is devoted to matrimonial actions in Bergen County, even if their offices are located elsewhere. Since these attorneys volunteer their time, litigants are asked to give them their attention and respect.
HOW DOES THE MESP WORK?
Approximately one week prior to the Early Settlement Panel date, the litigant’s attorneys provide the panelists with an updated Case Information Statements, a written history of the case, a settlement proposal and any other information they deem relevant and helpful. The panelists review this information prior to the panel date. On the day the panel is to proceed, the litigants and their attorneys appear before the Presiding Judge of the Family Part for a brief introduction, and then proceed to the Early Settlement Panel.
The panelists first meet with the litigants’ attorneys where they listen to both attorneys argue their clients cases and answer the panelist’s questions. Usually, the panel then asks the attorneys to excuse themselves and the panel members confer among themselves. The panel then presents its recommendations to the attorneys and to the litigants. Their decision is based upon their knowledge of the law and their years of experience as matrimonial attorneys in Bergen County.
Their recommendation is what they believe a Judge will likely decide should the matter be tried to conclusion. Please keep in mind that the panel deals only with financial and property distribution. The panel rarely addresses issues of custody or parenting time. The parties with their attorneys are free to accept or reject the panelists’ recommendation. For some it is a stepping stone for settlement and others, it is the settlement. You are permitted to sit at the courthouse and to continue to negotiate your case with the other side.
The panel will continue to assist if they can be of help. However, the panel is only is available during the morning hours.
WHAT IF THE RECOMMENDATIONS OF THE PANEL ARE NOT ACCEPTED?
The recommendation the panelists is not binding upon the litigants, nor are the recommendations of the panel revealed to the Court. The purpose of the panel is to reach a fair and just settlement without having to prolong the case or add additional legal fees. Therefore, we ask that you carefully consider their recommendations and keep in mind that to continue your case will only add to more fees.
If your case is not settled with the assistance of the Early Settlement Panel, your matter will be scheduled for trial. In some instances, the case may be scheduled for a conference with a Judge, or referred to mediation. However, please keep in mind that contested divorces must often wait a year and in many cases longer, for a trial date.
WHAT HAPPENS IF THE RECOMMENDATIONS OF THE EARLY SETTLEMENT PANEL ARE ACCEPTED?
If the litigants agree to accept the recommendations of the panel or work out another settlement the day of the panel, the settlement can be immediately placed “on the record” before a Judge of the Family Part. One attorney will read the settlement into the record and both parties will testify under oath that they understand, agree to, and will be bound by the terms of the settlement.
At that time, other evidence will be admitted regarding the grounds for divorce and the parties can be divorced on that date. If the parties prefer to wait and have their settlement set forth in writing before going to Court, a date for the divorce will be scheduled on the day of the Early Settlement Panel and the parties will return at that later date with a written settlement.
PLEASE KEEP IN MIND…
The Early Settlement Panel process permits much greater input by the litigants into the resolution of their matter than does a decision by the court. Litigants cannot actively participate in any decision that is made at trial by a Judge. A Judge’s decision is based solely on the evidence presented before him/her at the time of trial as well as an application of the law. Settlement provides the litigants with much more flexibility and creativity. Unfortunately, the emotional responses individuals have in a divorce situation play little role, if any in a result at trial. A Judge is required to follow the law and the evidence presented.
As a result, the agreement reached through the MESP program can achieve results beyond that which a Judge may be permitted to impose. It provides for much more flexibility and therefore, it is in the best interest of the litigants to settle their matter rather than let a Judge make a decision that will effect the remainder of yours and possibly your children’s lives. The panel members are knowledgeable and experienced matrimonial attorneys.
They volunteer their time and are making recommendations that they believe are in yours and your spouse’s best interests. They have no personal stake in your matter. Finally, please participate in the Early Settlement Panel process with an open mind and a view towards settlement and compromise. Even if your matter doesn’t resolve itself on the day of the panel, please continue settlement negotiations.
A trial not only is costly, but will require a significant time away from work and will be emotionally draining as well. Good Luck! Excerpted from Bergen County Early Settlement Panel, by Lorraine Brietman, Esq., published by the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, used with permission.
WHAT IS A CASE MANAGEMENT CONFERENCE?
In New Jersey, thousands of cases are added to the divorce docket every year. In Bergen County alone, some 2,600 cases were added last year. About the same number are disposed of annually. Some cases are no-asset, uncontested matters, and other are dismissed because the parties reconcile. However, most divorce litigation requires court intervention at some point – or at several points. The timetable for the average case anticipates its being concluded within a year of filing the complaint.
Some matters, because of their complexity, the appearance of new issues, illness or for some other reason require a longer time to conclude. Of these annual filings, only about 2% will be tried to conclusion. This means that the other 98% are resolved without trial – by settlement that comes about in various ways. Sometimes the parties and their attorneys meet several times to work out an agreement. These are called “four-way conferences.”
Or the parties and their counsel will be court-ordered to attend a Mandatory Early Settlement Panel (MESP), which consists of three lawyers experienced in family matters who will review the parties’ positions and make recommendations for settlement. If a case is resolved by the panel, a judge will bear the divorce as an uncontested matter, with the terms of the settlement put on the record. If it is not resolved, the litigants an counsel may use the panel’s recommendation as the basis for further settlement discussions on their own.
A divorce case cannot be tried, nor can intelligent, meaningful settlement discussion be conducted unless and until all the underlying information (mostly financial) is available and the parties’ respective positions are put forth. At the case management conference, each case is put on a “track” (priority, expedited, standard or complex) and a schedule is set through which this information can be obtained in an orderly manner. First is a determination whether or not there is dispute over child custody or timesharing. If so, the case will be designated a “priority” case.
Litigants must certify it to be a genuine issue and not merely strategy or manifestation of a litigant’s annoyance with or defiance of the other party. Parents must be made aware of the effect their divorce is having and will have on their children. Litigation of a custody/timesharing arrangement should only be used when all other attempts at resolution have failed and is the least desirable method. Involving children in their parents’ litigation can and likely will have a deleterious effect on them now and in the future.
Children should perceive that decisions affecting their future are being made by their own parents and not by a third party (such as a judge).If parents have not resolved custody and time-sharing issues, they must view two videotapes about children and divorce. Ultimately they must prepare and sign a custody and time-sharing plan. It is suggested that the parties attempt to mediate custody or time-sharing through one of the services available.
An order for mediation may be signed after the Case Management Conference. Or the parties may hire a private mediator. If they are unable to settle the issue, it will be necessary to engage experts for psychological evaluations (each side’s expert can cost several thousand dollars.) As an alternative to individual experts, the parties may agree to use a joint expert, or may use private non-profit organizations affiliated with the county, whose rates are based on ability-to-pay. Custody issues cannot be decided merely on the basis of the litigant’s testimony.
Ordinary discovery of factual and financial information is accomplished via the exchange and filing of certain forms. The Case Information Statement (CIS) is required under the Court Rules and should have been filed within 20 days of filing of responsive pleading to the complaint. Its format is prescribed and provides basic and essential information regarding assets, liabilities, income, budgets, etc. Interrogatories (questions) and requests for production of documents (document demands) are sent out.
Usually these are sent out by both parties early in the litigation, about 30 days after the Case Management Conference. Depending on the extent and complexity of the inquiry, answers should be provided between 30 and 60 days after their receipt. Financial details, backup documentation, tracing of funds, and history can be disclosed through these inquiries. Depositions of the parties, if necessary, should be completed in the 30-day period after receipt of the interrogatory/document demand responses.
A deposition is oral testimony under oath before a shorthand reporter. Appraisals and evaluations of certain assets may be necessary. The value of the marital residence or other real estate is necessary if one party may retain the property after the divorce. Antique autos, stamp or coin collections or art work may have to be appraised. Interests in pensions may have to be determined. Each party may wish to engage their own expert or the two may agree on a joint expert (appraiser of evaluator).
The value of a business interest (e.g., a service station or a medical practice) may require an expert specializing in that subject matter. these values should be obtained during the discovery period. A forensic accountant may be hired to analyze income or to trace funds. In “expedited” cases, discovery should be completed 90 days from service of the complaint, and within 120 days for “standard” cases. “Priority” and “complex”” timetables are set individually by the judge.
The MESP date is scheduled 3 to 4 weeks after completion of discovery, to give litigants time to collect the date and to formulate settlement proposals to be exchanged and submitted to the panel. Economic Mediation, if appropriate, will be scheduled after the MESP conference. If these efforts to resolve the case before trial fail, the litigants and counsel should expect, realistically to have a trial within two years after the date of filing of the complaint.