The Earlier the Better

The Early Settlement Program, often referred to as “ESP,” is a court-mandated mediation program in which--with few exceptions--all divorcing couples must participate. In fact, the only way to circumvent ESP participation is if both parties agree to proceed directly to private mediation. As a general rule, the direct-to-private-mediation approach might be utilized where there are complex financial issues--but, for the most part, the vast majority of cases proceed through ESP.  The Program focuses only on the attempted resolution of financial/economic issues, including equitable distribution, alimony and child support--it expressly does not address custody or parenting time issues (that is the focus of a separate program which will be discussed in another blog).  The purpose of the ESP is to provide the litigants with an opportunity to resolve the financial issues attendant to their divorce in the earlier stages of the proceedings.

Each county in New Jersey runs its own Early Settlement Program, to which many of the local matrimonial practitioners volunteer their time. The Program is comprised of panels of two (or, sometimes, three) experienced matrimonial attorneys who are each assigned a few cases on their given ESP day. Prior to the actual appearance with the ESP panel, each of the litigants is required to tender a submission (an “ESP Statement”) which summarizes the material facts and sets forth that party’s position on the resolution of each issue. Although overlooked, the preparation of the ESP Statement is an invaluable opportunity to memorialize the best arguments in favor of a particular party’s position as to key financial issues and to present them cogently to a neutral panel well versed in matrimonial law. Indeed, a thorough and well-prepared ESP Statement can be instrumental in shaping the ultimate recommendation of the ESP panelists.

With regard to the appearance at the ESP panel (almost all of which is conducted virtually at the present time), that is the opportunity for each of the parties, or their respective counsel, to present their proposed disposition. Although lacking the formality of a court-appearance before a judge, the give-and-take between counsel and the panelists can be robust and vigorous. It is critically important that a party is represented by an attorney with command of both the facts and the law. At the conclusion of the panel appearance, the panelists will render a proposed disposition that, based on their experience, would be the likely disposition were a Family Part judge in that vicinage to render a decision at that juncture. 

The entirety of the ESP proceedings (including all written proposals, all arguments and the panel’s recommendation) are considered part of the settlement process and are not admissible in any subsequent proceedings. Moreover, the panel’s recommendation is in no way precedential or binding on the parties--but a panel’s recommendation should certainly be viewed as informative and, even if not accepted, may be helpful in further negotiations. Indeed, in cases where the panel’s recommendation is not accepted at the time, it is always interesting to compare that recommendation with the ultimate resolution of the case--be it by further negotiation or litigation.  Suffice to say, the purpose of the ESP is to spare the parties the additional expense--which could be substantial--of protracted litigation.

The ESP serves an invaluable function within the New Jersey Family Court system and presents an ideal opportunity for the efficient disposition of the financial issues attendant to every divorce.  It is wise to make sure that you are represented by an attorney who appreciates the importance of the ESP.  We at Cohn Lifland Pearlman Herrmann & Knopf LLP certainly do, and you are welcome to contact a member of our team before you have to face an ESP panel--the earlier the better.