So often, parties go to court only to be told by the judge to “work it out.”  It’s a strange phenomenon; after all, if the parties could “work it out,” why would they go to the trouble and expense of hiring lawyers, gathering proofs, preparing pleadings, and appearing in court?

We all know that one of the risks inherent in litigation is that the parties will have to deal with the realities and limitations of the very busy Court system.  No matter where you live in New Jersey, every court house is busy and every judge has many cases to preside over.  Oftentimes, judges want the parties to resolve the issues themselves simply because they know that – given all of the other cases on their plates – a decision could be a long time coming.

While settlement can lead to a fair outcome, sometimes the parties are too far apart in their positions and need to call on the judge to make a decision.  In those cases, it’s important to remember that litigants have a right to a decision from the court, including the necessary findings of fact and conclusions of law.  In a recent unpublished decision from the Appellate Division, Watson v. Chamberlain, the parties were unable to resolve a dispute about the payment of their child’s medical expenses.  Instead of deciding the issue or ordering the parties to produce discovery and proceeding to a hearing, the Court “directed the parties and counsel to try to work out the $609” Ms. Chamberlain claimed Mr. Watson owed her.  When the parties appealed the issue, the Appellate Division’s hands were tied.  Without any sort of record of factual findings or conclusions of law – in other words, without any kind of decision by the Court – there was nothing for the Appellate Division to review.  In the end, the Appellate Division ordered that the trial judge conduct the hearing regarding the medical expense issue anyway.  A lot of time – and legal fees – could have been saved if the trial judge had made a decision the first time around.

It is part of the attorney’s job to know when to settle and when to litigate.  And it is, without a doubt, the judge’s job to make a decision when the parties can’t do it themselves.  If the parties truly have an issue that they cannot work out, we have to advocate to make sure the judge decides, no matter how much pressure is put on the parties to settle.  Otherwise, there is no recourse; the Appellate Division won’t be able to affirm or remand a decision that never happened, and the parties will be left in limbo indefinitely.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or