Although Rule 1:40-5 precludes mediation of certain issues when a Final Restraining Order (“FRO”) is in place, they do not address the situation where a preexisting Property Settlement Agreement (“PSA”) requires mediation. In O.P. v. L.G-P, the Appellate Division explains why the provisions of the preexisting PSA requiring mediation and parental communication should not be enforced after an FRO prohibiting contact between the parties is entered. In that case, the parties agreed to extensive communication about their child and to mediate if they were unable to resolve future disputes. Post-judgment litigation started only a few months after the divorce, including the entry of a FRO. L.G-P filed a motion to enforce the child support provisions of the parties’ PSA. She also sought to eliminate the mediation requirement in the parties’ PSA. At oral argument, the trial court ordered O.P. to pay the bills he conceded he owed. When L.G-P protested that mediation did not work and that the agreement addressed O.P.’s obligations, the court responded by asking how O.P. could provide proof of expenses with an FRO in place. L.G-P suggested an attorney forward her the documents or a police officer give them to her during parenting-time transfers. The court rejected L.G-P’s suggestions and told her to mediate any disputes.
The Appellate Division held that the trial court should have not ordered the parties to work out contested issues through mediation. Although New Jersey has a strong public policy favoring enforcement of agreements in divorce cases, provisions in a PSA that were reasonable at the time of the agreement may become unreasonable upon the entry of an FRO. Although returning to court may be inconvenient and costly, alternate dispute resolution methods are not safe when an FRO has been entered. When parties agree to mediation at the time of the divorce, they do not anticipate the subsequent entry of an FRO. Therefore, for reasons of safety and the strong public policy where mediation is precluded when a FRO is in place, mediation should not be ordered after a subsequent FRO has been entered, even if it would be to conform with the provisions of a PSA.