Prior to the current coronavirus pandemic and resulting shelter in place orders, in many counties, there was already serious backlogs. What that means is that trial dates were hard to come by and even motions were scheduled to be heard months after they were filed. While the courts are not currently closed, they aren’t exactly “open” and it is far from business as usual. While some judges are being very active, if not proactive in managing their dockets, doing conferences and hearings via Zoom, Teams and or telephonically, others have completely shut down. Today we learned of one judge that has adjourned all uncontested, default and Case Management Conferences until a future date even those things can be easily done remotely, if not “on the papers.”
The present situation has gone on for almost a month at this time and will, at best, go one for another 3-4 weeks if we are lucky, but it wouldn’t be crazy to see the current shelter in place/stay at home orders continue through May. Essentially, the court could be adding several months of light activity or inactivity to an already burdened docket. If New Jersey is anything like China, as I blogged about last week, there could be many new divorce filings not to mention domestic violence matters to adjudicate due to all of this staying at home. This is not to mention all of the expected applications for modification and/or enforcement resulting from the layoffs and job loss caused by the pandemic, which I also blogged on last week. Add to that, the people who were planning on filing for divorce before pandemic hit, and the usual array of pre and post judgment motion practice that would come up in the ordinary course. Those people are going to file, if nothing else, the get themselves into the queue to have their issue resolved by a court eventually.
While I may have painted a dreary picture or what is or may become of the court system, that is not the only avenue for resolution for many, if not most of the issues issues that are out there. While clearly, things like domestic violence and the actual granting of a judgment of divorce are within the sole province of the Court system, there are many things that can be done outside of the system (and there are some people that argue everything else should be done outside of the system but that discussion is for a blog of another day.)
We have talked many times in the past about mediation and arbitration. While those tools are often used to try to resolve the entirety of a case, there is no reason why they cannot be used to resolve motions and other discreet issues. Just like there are early settlement panels and sometimes, Blue Ribbon panels, within the court system, there is no reason that parties cannot privately hire one or more divorce lawyer (and perhaps even a forensic accountant), to serve as a blue ribbon panel to make settlement recommendations. Many of the custody experts have a part of their practice that offers divorcing parents an alternative path to try to resolve their parenting/co-parenting/custody issues outside of litigation. Even in complex financial cases where each party has a forensic accountant of their own, a third expert can be brought in to assist to reconcile the reports and/or provide an opinion on contested issues for purposes of settlement and/or future litigation. Parties can agree to arbitrate all or part of their matters – even agreeing to an appellate arbitration process – if they are fearful of an arbitrator possibly making an incorrect decision.
The point is, parties are not stuck waiting for the courts to move forward. Our group at Fox Rothschild has used many of the above methods in trying to resolve our own cases, both before and now during the pandemic. In addition, many of us have completed mediation training, serve as early settlement panelists, serve as blue ribbon panelists and can serve as an arbitrator too. In fact, if we expect to give some relief to the court system, both now and until it gets back to “normal”, whenever that may be, it makes sense to consider every available tool towards resolution. And while all of these tools come with an added cost, what is the cost of delay, both on a financial and/or emotional level?
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 is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.