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.
Mediation by its very nature requires a level of trust between the litigants that each will come to the table with the intention of negotiating and dealing in good faith. Sometimes that simply does not exist. In those cases, arbitration may be an excellent alternative to the court system. In some counties, arbitration is widely used. In others, not so much.
Arbitration is a good option for litigants who are unable to sit down in mediation and need a decision for contested disputes. There are many excellent arbitrators who specialize in family law, including many retired judges who are more than capable of rendering a sound decision. Arbitration is much like a trial in that there can be a hearing and each party can present witnesses if appropriate. The parties enter into an agreement in which they set the ground rules, and arbitration can include the right to appeal a decision. In the vast majority of cases, a decision is made by the arbitrator very soon after the hearing, letting the litigants go on with their lives.
Our reality is that there may need to be more use of some of these mechanisms in order to assist break up the log jam that exists in the Family Court.
Jennifer Weisberg Millner is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group. Jennifer practices throughout New Jersey in all areas of family law and family law litigation and is resident in the firm’s Princeton office. You can reach Jennifer at (609) 895-6712, or firstname.lastname@example.org.