We have all had this happen.  Letters get written back and forth to try to settle a matter and/or you just file a motion because the issue is clear based upon the law and the facts.  Or, the parties, for whatever reason, just wont resolve an issue because one or both is being unreasonable.  So you come to court to argue your motion and the judge urges you to settle again before hearing argument.  Ok, settlement on the courthouse steps is not uncommon, but often, a review of the motion papers should make it clear whether there is any prayer or a consensual resolution.  Worse yet, after you argue the motion that is ripe for determination, the judge defers decision and sends you to mediation.  Is that right? 13690807_s Well, in the case of Powell v. Gorski (an unreported – non precedential Appellate Division decision decided on April 22, 2015), the Appellate Division said no.  Specifically, the court held that once the court reviewed and analyzed a motion, the matter should have been decided.  In this case, one party filed a motion for emancipation and the other filed a defective cross motion for retroactive college and future graduate school contribution.  The trial court denied the request for emancipation without prejudice “[g]iven the existence of disputed issues of material fact”  but rather than scheduling a plenary hearing, the trial judge “encouraged [the parties] to mediate their disagreements” because “future litigation would not appear to be in the interests of either party.”  The Appellate Division reversed holding:

We also comment on the procedure employed here. We have previously noted “[t]he business of the courts is to finalize disputes.” Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010). When parties properly file actions seeking review and determination, and the case is presented for disposition, the matters should not be redirected, but determined. Despite the judge’s salutary motive in urging the parties’ settlement, they have the right to final review of their contest. Had the judge considered the matter appropriate for mediation or some other alternative dispute resolution process, see R. 5:4-2(h), he could have offered that suggestion prior to review. Once undertaking review and analysis, a final determination should be made. Further, if the motion record was found to include disputed material facts, the judge should have scheduled a plenary hearing. … (Emphasis added)

All to often, matters are deferred to mediation or deferred to more experts when decisions need to be made.  The Parish case cited above was my case, and the trial court in that case mandated settlement conferences prior to filing future motions, but the Appellate Division determined that that was improper.  When parties need an issue decided and do what is necessary to have it decided, it should be decided. _________________________________________________________ Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  photo courtesy of www.123rf.com

Leave a Reply

Your email address will not be published.