The most timely and important issue in the recent Appellate Division case of N.H. v. H.H. dealt with the rapidly developing law of the alternative process of arbitration in the family law context, and in that case, particularly as that process relates to children issues. That is the subject of a companion article on this blog.

 Another issue of note to litigants raised by this case relate to claims of litigants as to lack of impartiality (bias and/or prejudice) of a decision-maker, whether the title be a judge, an expert rendering a report, a mediator or an arbitrator.

In this case, the Wife argued that the mediator’s prior role in the parties’ attempt at reconciliation “perverted” his ability to act as an impartial mediator, particularly due to his acquaintance with the Husband (an attorney). The reviewing court found nothing in the record to substantiate such a claim. In so finding, Judge Harris said that “. . . illusory or metaphysical doubts about the performance of a mediator’s services will not suffice to engender an erosion of confidence in the product of such process”

The significance of this aspect of the case encompasses legal resolutions far beyond that limited to the process of mediation. Many times a litigant will so totally disagree with a judge’s determination that he or she will characterize the judge’s attitude as being biased or prejudiced. During a proceeding, the process of addressing these issues is known as disqualification, and is governed by Rule 1:12-1(f) of the New Jersey Rules of Court. It provides (among other things) that a judge should disqualify himself or herself when there is any “. . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”    Cannon 3 of the Code of Judicial Conduct provides for disqualification for “personal bias or prejudice . . .”

Having set forth these legal parameters, while A judge should not disqualify himself or herself merely upon the suggestion that grounds therefore exist, but only in cases in which the alleged cause is true: merely expressing an opinion in the case, or in any other case in which the same issue appeared, does not necessarily disqualify the judge nor does making a ruling adverse to the party seeking recusal, nor does even making an inappropriate comment.

On appeal, a determination of a trial judges will not lightly be overturned. It is only when the judge has abused his or her discretion, or the facts as found by the trial judge are not supported by sufficient credible evidence. Thus, even on a question of disqualification on appeal, such a claim will be sustained only in cases in which it would make a substantial difference in the outcome.

Allied to this is the question of assigning another trial judge in cases which warrant a remand from the appellate court and further proceedings thereafter at the trial level. Even though the reviewing court has the power to reassign the matter, that power will be exercised only when there is a concern that the trial judge has a potential commitment to his or her prior findings.

Thus, the lesson in this regard to be learned is that while a litigant may be greatly dissatisfied with either the conduct or determination of an expert of decision-maker, it takes a great deal of actual proof, not just perceived dissatisfaction, before a person performing such duties will be disqualified, and thus, his or her work product voided. The words of the Appellate Division in Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978), say it all:

“Attorneys and litigants must understand our limited role on appeal. The equitable distribution law is relatively new and important interpretations may still be needed. But the result in this case, like many others, simply represents the best a fair-minded, conscientious judge can make of the law and the intangible equities on each side. How can one measure the benefits and losses of each party in a marriage that has consumed some seven years of cohabitation and two or three more of separation before divorce? A woman has worked during that time, as did her husband, inside and outside the home, but her salary has been less than his. A judge is then called upon to divide the material acquisitions that remain, but frequently there are neither assets nor wisdom sufficient to satisfy the expectations of each party.

More than a feeling of dissatisfaction is needed to fuel an appeal. It is a mistake for parties to seek satisfaction in this court simply because it has eluded them in the trial court. The advantage sought here is apt to be illusory. A sharp departure from reasonableness must be demonstrated before our intercession can be expected. Attorneys must exercise objectivity to calm the fighting blood of the parties and restrain their self-punishing, litigious impulses. The faint hope for victory on appeal should not be used as an excuse to continue the marital discord.

It is not surprising, therefore, that this litigation will end on the same disappointing note as the marriage. Neither party received what he or she hoped for. But the trial judge did the best he could on the evidence before him. We cannot say that he was wrong.”