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What Is ESP in New Jersey, and Do You Need a 6th Sense to Benefit?

Rachel Alexander Jan. 28, 2016

{5:36 minutes to read} When divorcing couples are on the (complex) litigation track, at a certain point in the process, they’ll be scheduled for an ESP. No clairvoyants or mediums needed. In New Jersey, ESP stands for Early Settlement Panel. ESP varies from county to county, each county having a slightly different preparation requirement and way of running things.

ESP panels are something that the court instituted in the 1980s in order to encourage clients to settle after they’ve had the opportunity for discovery. Discovery means:

  • Providing one another with requested financial information

  • Exchanging Interrogatories and Notices to Produce

The court system is a slow-moving mechanism, so it seems like we’re all heading towards trying to settle, trying to negotiate, trying to help people avoid long trials (or any trials at all).

In Sussex County, the Early Settlement Panel consists of two experienced family law attorneys who meet with the attorneys on the case and potentially the clients, as well. They go over the relevant issues as the attorneys have identified them and discuss what their assigned judge would likely do if the issues do go to trial.

Before the Panel meeting, the attorneys provide a Case Information Statement from the clients, which is New Jersey’s equivalent to New York’s Net Worth Statement. Each party must complete a Case Information Statement, which includes all of their financial data and attachments, including copies of tax returns, W2s, etc.

In addition to the Case Information Statements, the attorneys provide the panelists with a Panel Statement, outlining both open issues and any that have been resolved. In these Panel Statements, the attorneys also propose settlement options in accordance with their clients’ wishes. The Panel Statement (which is where the counties may differ, in terms of what form they utilize) is a memo to the court that articulates the different issues in the case, including:

  • What’s been completed in the discovery process

  • Alimony

  • Child support

  • Child custody

  • Equitable distribution

  • Any other relevant issues

And while ESP stands for Early Settlement Panel, in a way, it also is a prescient device—a process that forecasts the likely future outcome of a trial and can thus, oracle-like, help direct parties in managing their present process in a more informed way. In trials, there is a frightening sense of the unknown, and in matrimonial law, in particular, much is left to the particular judge’s discretion. Having a sense of what your outcome could be can be quite helpful.

The aim is for the attorneys to be able to have a candid discussion with their panelists about what would happen and how their particular judge decides certain issues. With that information, attorneys can with greater clarity return to their individual clients and inform them of what will likely happen if they go forward with trial. It can also be helpful to the attorneys in deepening their understanding of certain issues, particularly with newer statutes that are only now being interpreted by the courts. ESPs furnish attorneys with more data and leverage to engage in more meaningful negotiations with their clients and their opposing counsel.

Nothing the ESP panel recommends is binding. Its purpose is to encourage parties to settle the case.

In a recent ESP panel, my opposing counsel and I were working very cooperatively and collaboratively. We were both confident that we would be able to ultimately resolve the case; the ESP was extremely useful, helping us all further crystallize the issues.

The advantage of the ESP was that I had my adversary right in the same room. We had our phones; we scheduled our meeting, our conference. From the client’s point of view, the ESP might also serve to give the clients a taste of what it is to be in the court and maybe bring home the idea that they really don’t want to be there for a whole trial.

My hope as a mediator is that the legal system in the next decade or so will be moving to a more cooperative, resolution-driven, humanistic, friendly, less aggressive approach. I am a mediator, after all—I’m by nature full of optimism! In the same way we have evolved from dueling to discussions, and the Colosseum to tennis arenas, mediation is the evolution of the adversarial system.

You don’t have to be clairvoyant to know that this is good news for divorcing couples and attorneys alike!