NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case."  In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable.  Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn out, and perhaps insufferable negotations.  I have dubbed these mind numbing, perhaps bad faith negotiations, where sometimes you take one step forward and two steps back and sometimes, no issue is ever resolved, and sometimes, you make an offer about alimony and the response is about equitable distribution - death by a thousand paper cuts.  Whether intentional or not, you wonder whether a trial would have just been bettter.

I ponder that after recently concluding a case that, while having one little twist, which we got past several months ago, then endured numerous mediation sessions, numerous Intensive Settlement Conferences at the Courthouse and even more than one scheduled uncontested hearing where even the final changes had final changes, plus new changes.  In fact, I have recently had several cases where it took an inordinate amount of mediation sessions to resolve simple cases.  In one reasonably simple case, the parties went to mediation 6 or 7 times, before attorneys attended and even then, it did not settle despite the outcome being obvious.  In another, after 9 mediation sessions (7 with lawyers present), the case remains unsettled though only small dollars in the big picture remain in dispute. 

In your garden variety case, the inordinately drawn out process only serves to either wear a party out and forces the righteous client to give up to either move on or stop the bleeding of legal fees.  Otherwise, they incur a large legal bill just to get to the place they should have been had the other side acted reasonably (presuming for the second that they have negotiated fairly and reasonably.)

While I understand the desire to avoid trial at all costs for all of the usual reasons - finality, having control of your own destiny as opposed to putting the decision in the hands of a stranger, etc.- if the process comes to a place where all things considered, you cannot do worse if you go to trial, maybe a party should consider pulling the plug on these expensive snails pace and/or bad faith drawn out negotiations,  Perhaps the threat, if it is a real threat and you actually start doing what is necessary to prepare for trial, will stop the nonsense and get the other side to end the case once and for all. 

_________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion.  For some issues, like enforcement, one questions the obligation to go to mediation.  Either someone violated the agreement or they didn't.  Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay.  And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute. 

This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.  In this case, the parties divorce agreement stated:

In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes. 

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 There is no secret that New Jersey is suffering a significant crisis with respect to judicial vacancies. This year alone has seen a significant number of retirements without replacements being named.  The effect on the family courts, and in particular, the divorce docket, has been catastrophic.   I was at a meeting of family lawyers just recently at which the assignment judge of a county in the southern part of the state was kind enough to come and discuss directly with the bar the situation.  And while I deeply appreciated the fact that he did, and the efforts that the judges are making to accommodate the needs of the public, the fact of the matter is that the situation is untenable throughout the state.  In some counties, the situation is so bad that there are no, I mean no, trials for contested divorce cases.  In others, a case will not reach a judge for final disposition for three years,  In several counties, judges have upwards of 500 cases to handle.  Only a superhuman can give a matter the attention it deserves when having that type of case load.  

The purpose of this blog is not to pass blame, nor to comment of the swirl of political posturing that goes on when this subject comes up. Rather, despite the fact that the vast majority of judges that I know are working late nights and weekends, they simply can’t keep up effectively.  And that means that attorneys and litigants have to find an alternate method to resolve their cases in order to save money and get on with their lives and those of their children. Any good family lawyer will have an honest conversation about the cost ridden road to the Courthouse.  Certainly, there are times that judicial intervention is necessary and as lawyers, we are prepared to take a case to the judge. However, alternate dispute resolution is an important piece of the puzzle.

There are several effective methods of alternative dispute resolution that must be considered by litigants.  Some of these are woven into the court system.  Some are complimentary to the system. Before filing for divorce, talk with your lawyer to determine whether mediation, or arbitration is a viable option for your situation.  

Mediation can occur any time during the process, and can happen with or without attorneys. Many times litigants will agree to go to a mediator to resolve their differences and then the mediator will prepare a memorandum of the agreement that the parties have reviewed by their respective counsel.  Sometimes, someone may be uncomfortable going through mediation without legal counsel.  In that case, going with a lawyer can be a cost and time effective method to settle the case. When you go with a lawyer, you can make sure that your rights are protected, and you do not agree to anything without having the opportunity to discuss the ramifications.

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Recently, I was at a mediation where the mediator, when telling us his assessment of my client's case, said that he was creating "settlement anxiety."  I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to make compromises and settle.  If the goal is getting a settlement at all costs, I guess it makes sense - but is it fair?

In most cases, there is a "realm of reasonableness" or a range in which any settlement would be essentially fair.   Perhaps, a fair alimony figure could be between $100,000 per year and $125,000 per year.  A fair resolution could be either of those numbers and anything in the middle.  In most cases, people, with all relevant facts and acting reasonably, negotiate within the realm of reasonableness, but at either end depending on which side of the case they are on.  In that case, a mediator trying to create "settlement anxiety" will try to express the flaws in either case to get the parties to meet somewhere in the middle to achieve a result that is fair.

But what about cases where one party is negotiating within the realm of reasonableness and the other is not?  Put another way, what about cases where one party has the law and the facts pretty much on their side as to most issues and the other side is taking a position that is absurd?  In this case, should the mediator be trying to create similar "settlement anxiety" in both parties?  Add another level - what if the mediator knows that the unreasonable party will never settle the matter in a reasonable fashion?  Should the mediator pressure/create the same amount of "anxiety" in the more reasonable party just to achieve a settlement even though everyone knows it is unfair?  Should the result be settlement at all costs?  Does this type of pressure on the righteous party just to get a deal done artificially undermine a party's relationship with her counsel and experts, if just for settlement purposes, they are told that their case is weak when it is not? 

In my humble opinion, pointing out the legitimate limitations in someones case in order to help create a settlement is fair and appropriate.  On the other hand, creating artificial anxiety just to get a settlement all all costs because one party is acting unreasonably or negotiating in bad faith is not.  The system should be fair and equitable and the parties are entitled to justice.  It is neither fair nor justice to lessen a party's confidence in their case, artificially, just because the other side will never settle in a fair and reasonable manner.  That does not mean a party cannot give more ore receive less just to get a case done and move on with their life.  That is their choice.  On the other hand, they should not be manipulated just because the other side refuses to be reasonable.  And as I have said before, sometimes you just have to try a case.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled "A Divorce Negotiation Primer".

There are several points I would like to highlight:

• negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the ultimate issue that is the subject of the negotiations.
• negotiation is intended to narrow issues
• at the time of trial, no one is bound by the positions taken during negotiations
• a party who negotiates backwards (for example making a demand, then increasing the demand), risks losing credibility in the negotiations and also causes their attorney to lose credibility.
• Put all issues on the table as early as possible so as not to spring new issues when settlement appears near and/or give a party false hope of settlement when the parties are not really all that close.

As usual, Mark's advice is good advice. 

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As we recently learned from the Fawzy case that we blogged on, parties have a right to private ordering and self determination of how they want to resolve their cases.  In Fawzy, the NJ Supreme Court held that people could arbitrate custody matters as long as certain procedural measures were taken.

Can people decide to submit an issue to an expert for a binding determination?  On March 10, 2010, in an unreported (non-precedential) decision issued by the Appellate Division in the case of Cully v. Cully, the question was answered affirmatively.

In this case, post-judgment litigation occur ed over the correct interpretation of a Property Settlement Agreement, more specifically, the correct form of a QDRO (the mechanism to divide an ERISA controlled retirement asset).  The judge suggested that the parties could elect to have a QDRO expert
review both parties' QDROs and decide which QDRO is acceptable. The parties would split the expert's fee, and the loser would reimburse the other party for counsel's fees. The parties adopted the judge's suggestion and agreed to be bound by the expert's determination.

With certain modifications, the expert suggested adoption of the husband's form of QDRO and it was ultimately entered as an Order of the Court.  The wife appealed arguing that the court should have held a hearing on the parties intent since the language in their Property Settlement Agreement was not entirely clear.

The Appellate Division affirmed the decision finding that the since the wife's attorney advocated for and agreed to a binding determination by the expert, the wife could not then object when the decision did not go in her favor.  In fact, the Appellate Division specifically stated:

Our judicial process's integrity would be damaged if defendant received a second bite at the apple because she is disappointed that the process, which her counsel agreed to and advocated for, resulted in a decision unfavorable to her.  Both the doctrines of invited error and judicial estoppel bar this court from considering defendant's claims regarding the trial court's decision to accept Ms. DeFuccio's determination in this esoteric area of family law.

There are several lesson here.  (1) When you agree to submit a matter for a binding determination, you are stuck with that decision. (2) When you are dealing with the division of pensions, and there is any possibility for different interpretations/ways to divide it, it may make sense to hire the QDRO expert before the settlement so that the correct language is in the PSA; (3) in a similar vein, if possible, have the QDRO signed the same day that the divorce is entered.  Here, it appears as perhaps imprecise drafting was the problem.  Moreover, if the issue ultimately required a determination of intent, the decision to allow an expert, or anyone for that matter, to make a binding determination without first determining what the intent was, is a curious one.

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Previously we blogged on alternate dispute resolution methods ("ADR") such as mediation and arbitration. "Collaborative Divorce" is another ADR method.

"Collaborative Divorce" is defined as  a form of alternative dispute resolution for divorcing couples where a  team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however, they work cooperatively with their spouse.  The collaborative process uses informal discussions and conferences attended by both spouses and their attorneys to settle all issues. The collaborative process is premised upon an atmosphere of honesty, cooperation, integrity, and professionalism. It requires that both spouses, with the assistance of their attorneys, provide all pertinent documents and information relating to the issues to be settled. In the event that experts are necessary, it encourages the use of jointly retained experts. Both spouses and attorneys are required to work together toward a shared resolution that is geared toward the future well being of the family. If the parties cannot reach a settlement through the collaborative process approach, the collaborative lawyers withdraw from the case and the parties then retain trial attorneys to pursue the matter in court.

Is collaborative divorce for everyone? I am a divorce litigator and people often come to me with complex, high conflict and/or high stakes cases so perhaps I am biased in that regard. Even still, I cannot see collaborative divorce being for everyone to be used in every case. Just as I wrote about my concerns about mediation, i.e. the possibility of a spouse taking advantage of an imbalance of power; the settle at all costs posture whether the resolution is fair to both parties or not; etc., I think that those pitfalls are just as possible in collaborative divorce.

For instance, I recently heard of a divorce case described as "freakish". At the same time, the husband was described as a "power broker" and the wife was a housewife with a young child. Most confusing was the revelation that the parties were involved in a "collaborative divorce."

To me, this sounded like a recipe for disaster. How can a "freakish" divorce be collaborative? If both parties are "power brokers" perhaps collaboration could work though it seems like both would want to "win." Collaboration seems unlikely when one party is a "power broker" and the other is not - capitulation seems more likely than collaboration. Ever wonder why the more powerful spouse wants to mediate?

Perhaps for a garden variety divorce with two reasonable people, this can work. In most other cases, it seems that the interests of the weaker party could be compromised. 

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Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers."  It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court assistance when you want temporary support or time with the children. He said that any lawyer can get the same result and that hiring a good lawyer sets the client up for a racket that is in the lawyer's best interests, but not the client's.

Unfortunately, this is not the first time that I have seen attacks on lawyers from the mediation community.  There appears to be a turf war.  Either you are mediation friendly, or you are not.    Rather than recognizing that some cases are more amenable to mediation than others, the followers would rather attack the "non believers."  

While I agree that most cases will settle, many cases take a fair amount of discovery and litigation to get there. To believe otherwise is simply naive. 

Further, while mediation is not for everyone, it is a useful tool in many cases, Then again, just as not all attorneys are alike, neither are all mediators.  In fact, I suspect that the author of the blog that I read would agree that not every mediator can get the same result - though he says that any lawyer can. 

In a prior blog from May 2009, I wondered whether the mediator's goal was a fair settlement or just a settlement.  To see another blog post on mediation that I authored, click here.  Are parties, often the woman being protected from the imbalance of power that permeated the marriage?  Are people being told of their rights when they appear at mediation without lawyers?  What efforts are made to ensure full and accurate disclosure?  Are the appropriate appraisals being done at all, and when done, are they being challenged and scrutinized to make sure that they are fair and accurate? 

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.  Many of these deals came from the "best mediators." 

That said, rather than attacking lawyers, mediators should recognize that there is a place for the best attorneys and the best mediators.  I posit that the best and most fair mediated settlements will result from the attorneys and mediators working together rather than attacking each other.  I am sure that we can all agree that a fully informed settlement, where both parties interests are fully protected, is optimum. 

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Previously both Jennifer Millner Weisberg and I blogged on a highly publicized New Jersey family law case, Fawzy v. Fawzy.  To read my prior post on this case, click here.  To read Jennifer's post, click here. 

For those of you who may not be familiar with Fawzy, this matter involves parties who opted to participate in binding arbitration as to all outstanding issues in their matter, including a determination of custody and parenting time, as opposed to proceeding with a trial.

Alternate dispute resolution is another method by which parties who have outstanding legal issues between them can select a mutually agreeable individual to serve as a mediator and decide the issues, rather than sit through and bare the expense of an expensive and often lengthy trial.  Alternate dispute resolution methods, such as arbitration, are available in nearly every area of the law and not limited to family law matters. People prefer arbitration because it may resolve issues more expeditiously than otherwise having a trial.  In addition, the arbitration process can be more informal than deciding issues in a courtroom before a judge.  Our courts encourage arbitration as a substitute for litigation.  Arbitration conducted by an individual of the parties' own choosing is often less antagonistic than litigation and may minimize the harmful effects of divorce litigation on a family.

In Faherty v. Faherty, 477 A.2d. 1257 (1984), the New Jersey courts approved the arbitration of alimony and child support issues.  So when the Fawzy's decided to arbitrate the issues of custody and parenting time- what was the problem?

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Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances.  This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve.  As a result, I thought it would be wise to highlight some of the issues again.

To frame the issue, the bigger debate surrounded the practice where a couple goes directly to a divorce mediator or some other trained mediator, without attorneys.  Some of the things that raised concern were as follows:

1. Some mediators are concerned not whether the mediation is fair, but rather, simply that the parties reached a settlement
2. Number 1 would be less troubling, except that many mediators are not telling the party receiving an unfair deal that it is unfair
3. Rather, apparently, for many mediator's, the phrase, "I think you should discuss this issue with a lawyer" is code for the resolution of this issue or this case is unfair.  However, people go to mediators to avoid lawyers and/or there is an undercurrent among mediators that divorce lawyers really are not looking out for the parties' interests.  Moreover, some parties think that if a mediator is not putting a stop to the mediation when something is unfair, that it must be fair.

There was also a concern that the imbalance of power in the marriage that naturally is creeping into the mediation is being ignored.  A perfect example is in a case where alimony, perhaps permanent alimony is a no brainer, yet the wife is willing to waive it in mediation.  Is anyone asking why?  Did the husband vow to never pay alimony?  Was there a threat to "go after custody" if a spouse sought alimony?  Did one spouse say "I spoke to a lawyer who said you weren't entitled to alimony" as a means to deter the other spouse from seeking it?  Was the other spouse given access to money to consult their own attorney?  I once represented a woman in a post-judgment matter whose husband would not give her money for the attorneys she wanted to see, only for mediation and then an attorney he hand selected for her to draft the Agreement.  It was not shocking that the "mediated agreement" included a waiver of alimony and the child going to school where the husband lives, when the child was of school age, despite the fact that the wife was the primary caregiver. 

I have also seen many a  complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery. I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end. The better practice, and the better mediators require, parties to have attorneys involved from the start of the mediation so that both parties are fully informed about the law and the process and so that any imbalance of power can be rectified with an attorney protecting the weaker party.

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing.  That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled Mediate, Arbitrate, Negotiate:  What's a Client to Do?" To read the post, click here.

Mark's blog entry goes through the options of alternate dispute resolution.  Like Pennsylvania, in New Jersey, there is very limited review of an arbitrator's decision.  However, parties can agree to an appeals type process.  However, that appeal would be to a trial court, not the Appellate Division as we recently learned in the reported case of Hoogoboom.  Moreover, in New Jersey, you can mediate, but you cannot arbitrate custody and parenting time disputes.

Also, in my experience, arbitrations are very much like trials with the arbitrator serving as the judge.  While you can agree to relax the rules of evidence and the arbitrator, under the arbitration act can choose to relax the rules, most often unless people agree to proceed in some kind of summary format, an arbitration proceeds in the same manner as a trial in a Court would.

That said, the benefits of an arbitration noted in Mark's post are the same.

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On Tuesday, February 3, the New Jersey Supreme Court heard arguments on the Family Law case of Fawzy v. Fawzy. This case was originally reported by Sandra Fava of our Roseland office this past summer when the Appellate Division determined that a court did not have the ability to permit parents to submit to binding arbitration on the issue of custody. To read Sandra's original post, click here.  To read the full text of the Appellate Division's decision in the case, click here. 

The Supreme Court granted certification. Both sides offered excellent arguments for and against the issues.

In this case, Mr. and Mrs. Fawzy agreed, in the courthouse, and in front of a judge, to submit the issue of custody to an arbitrator.  As Sandra mentioned, the parties were scheduled for a trial date in early 2007.  When they appeared in Court on this date, they agreed to submit all issues in contest to an arbitrator for binding, final, non-appealable arbitration pursuant to this state's statute governing arbitration (N.J.S.A. 2A:23B1 to 32).  They, along with their respective attorneys appeared before the judge that same day and placed this agreement on the record.  The judge clearly advised them that the arbitrator's decision would be final and could not be changed.  The parties agreed and went forward. They went to a well respected arbitrator who specializes in family law. Subsequently, Mr. Fawzy, who did not like the way things were going, moved to vacate the arbitrator’s decision, contending that issues such as the custody of children could not be subject to arbitration. The Appellate Division agreed. 

But what of the future? Arbitration can proceed with the same formality as a court trial or in some cases, with a more relaxed structure. However, the process is something that is agreed to by the parties in advance order to insure fairness. In a nutshell, the strong public policy in New Jersey is such that the Courts favor settlements between parties through alternative dispute resolution, of which arbitration is one example. In arbitration, the parties agree to have an arbitrator, rather than a judge, decide issues. There are many instances other than the matrimonial context in which arbitration is utilized and has been for many years in New Jersey. There are laws concerning the use of arbitration. However, it is only in the relatively recent past that arbitration has been commonly used to resolve matrimonial issues. This is obviously due to the sensitive nature of family proceedings. At the current time, there is no statute which specifically governs arbitration in family cases.  Utilizing arbitration for custody seems to be the next logical step in alternative dispute resolution for matrimonial cases.

The central issue is whether a judge, who stand in a parens patriae, or protective role, can in effect delegate his or duty to make a determination as to custody to an arbitrator. There have been previous cases in which the courts have been prohibited from allowing a parenting coordinator from making decisions as to custody and parenting time. Is it right for  litigants to be able to agree to allow a third party other than a judge the authority to make a custody determination on these issues? There are certainly arguments for and against.

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This week in an opinion published by the Appellate Division, the Court  held that parties in a matrimonial action cannot agree to binding, non-appealable arbitration of child custody and parenting time issues.  Any such agreement would violate the Court's parens patriae obligation to protect the best interests of the children.

In the matter of Fawzy v. Fawzy,  the parties were scheduled for a trial date in early 2007.  When they appeared in Court on this date, after several hours of discussion, they agreed to submit all issues in contest to an arbitrator for binding, final, non-appealable arbitration pursuant to this state's statute governing arbitration (N.J.S.A. 2A:23B1 to 32).  They went before the judge that same day and placed this agreement on the record.  The judge advised them that the arbitrator's decision would be final and could not be changed.  The parties agreed and went forward.

The parties selected an arbitrator and began the process.  After several days into the proceeding, Mr. Fawzy sensed things were not going well for him and filed an emergent application with the Court to restrain the arbitrator from making a custody and parenting time award.  His argument was that these issues could not be arbitrated as a matter of law.  The trial judge denied his application.

Shortly thereafter the arbitrator issued a custody and parenting time award in Ms. Fawzy's favor.  Mr. Fawzy retained new counsel and filed a second emergent application seeking to vacate the arbitration award, disqualify the arbitrator, restrain the arbitrator from any further participation, require a de novo review of the reward and stay the award pending appeal.  The trial judge once again denied his application and entered an amended judgment of divorce confirming the arbitrator's award.  Mr. Fawzy then filed his appeal.

On appeal, Mr. Fawzy argued that as a matter of law, parties cannot bargain away the Court's obligation to review the best interests of the children by agreeing to binding arbitration of custody issues.  The Court noted that it was troubled by the fact that Mr. Fawzy did not make any claims that the award would cause harm to his children or in any way endanger their health, safety or welfare.  Despite that concern, the Court agrees that parties to a matrimonial matter cannot enter into an agreement to submit custody issues to final, binding, non-appealable arbitration.

While our courts have endorsed arbitration as a favored remedy and have encouraged the use of various alternative dispute resolution devices, the question of whether child custody could be submitted to final, binding arbitration has not before been addressed by the Court.  The Court has favored the use of final, binding arbitration for alimony disputes as seen in the 1984 opinion of Faherty v. Faherty, however they did not address the issue of custody directly at that time.

In conclusion, the opinion notes that while the development of a more workable custody arbitration process may be more beneficial to both the parties and the children involved in a matrimonial action, the Court ultimately must defer to their traditional parens patriae role.  That role requires the trial court to determine the best interests of the children regardless of any agreement for arbitration as to custody and parenting time.

While binding arbitration is a viable and useful alternative to litigation for the purpose of resolving financial issues related to equitable distribution and alimony, issues concerning and relating to the best interests of a child cannot be submitted to binding, final arbitration.  When considering arbitration as an alternative to traditional litigation, make mental note of its restrictions.

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Some times, despite all of the parties' best efforts - or in other cases, where one or both parties have no desire to settle, a case has to be litigated.  Trials are costly, for reasons you would think of, and also, for reasons that most people don't consider.  A good rule of thumb is that for each day of trial, there will be one or two days of time for preparation.  When you consider that both parties have to testify, as well as accountants, business appraisers, custody evaluators, real estate appraisers, employability experts, as well as a whole host of lay witnesses depending on the issues involved in a case, the actual known costs can be substantial. 

The hidden costs are the time spent waiting around.  Often times, you may be in the Courthouse from 8:30 a.m. to 4:30 p.m., and with interruptions, other matters and breaks, you only get a 3 or 4 hours per day of trial time.  Additionally, it is not uncommon for trial dates to not only be non-consecutive, and sometimes, there are several weeks if not months between dates.  I am currently in the midst of a trial where we had one half day in October 2007, another half day or less in January 2008 and another date scheduled for April.  Each time you go back, you have to re-prepare. 

While some cases that require a decision need to be arbitrated because the parties may not want to present certain issues to a Court, other cases that require a decision may be good candidates to avoid the above delays.  Often with arbitration, you can select days if not weeks in blocks thus condensing the time that the process takes.  In addition, without the interruptions that you will inevitably have in a court, the time spent at the arbitration can actually be spent arbitrating.

In advance of the arbitration, the parties can decide whether they want it to be binding (i.e. essentially, what the arbitrator decides goes) or whether there is a right of appeal.  The parties can decide whether then want a court reporter present or not.  The parties can even designate the scope of an appeal.  While the arbitration act provides a very limited scope of review, parties can agree that the decision can be appealed for the same reasons as could a judicial decision be appealed.  However, in what was made clear in a 2007 reported decision, the parties cannot confer jurisdiction to hear the appeal on the Appellate Division. Rather, the matter would have to be decided by the trial judge.  Click here for a copy of the case.

I recently completed a more than 10 day arbitration and the experience was extremely positive, for all of the reason expressed in this post. 

In any event, while there could be added costs associated with paying an arbitrator and court reporter, if the arbitration can be done more efficiently, if not more quickly, than a trial, it is a viable option in the right case. 

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