In a prior blog post, Setting Aside Bais Din Agreements to Arbitrate Due to Procedural Issues, I discussed the absolute necessity of the Umpire/Arbitrator’s Disclosure and the fact that appending that specific form as set forth in Appendix XXIX-D form [form arbitrator/umpire disclosure] to an Agreement to Arbitrate cannot be waived. In other words, the Umpire/Arbitrator Questionnaire is a mandatory component of any Agreement to Arbitrate in New Jersey pursuant to Rule 5:1-4 and cannot be fulfilled by countervailing procedures or circumstances.
There are also other mandatory components of an Arbitration Agreement, such as the fulfilling the requirements of an Arbitration Questionnaire. But, unlike the Umpire/Arbitrator’s Disclosure this form can be deemed fulfilled in the body of an Agreement to Arbitrate, as opposed to attached as a separate form disclosure exactly as written in the Appendix.
The questions that must be answered in the Arbitration Questionnaire, either as a separate form as set forth in Appendix XXIX-A or in the body of the Agreement to Arbitrate, are as follows:
- 1. Have you read the arbitration/alternative dispute resolution agreement?
- 2. Do you understand all of the terms of the arbitration/alternative dispute resolution agreement?
- 3. Do you understand you have the right to a trial in the Superior Court of New Jersey in which a judge would render a decision, and that by entering into the arbitration/alternative dispute resolution agreement, you are waiving your right to trial?
- 4. Do you understand by agreeing t arbitration/alternative dispute resolution that you are also waiving your right to appeal to the Appellate Division except in limited circumstances?
- 5. Do you understand that decisions rendered by the arbitrator/umpire cannot be challenged, vacated, amended or changed except in limited circumstances as may be set forth in the arbitration/alternative dispute resolution agreement?
- 6. Have you had ample time to reflect upon and consider the implications of your decision to arbitrate/resolve this case, rather than presenting it to a judge of the Superior Court of New Jersey?
- 7. Have you entered into the arbitration/alternative dispute resolution agreement freely and voluntarily without coercion or duress being exercised upon you?
- 8. Are you under the influence of any substances, such as drugs, medication or alcohol that may affect your ability to understand or voluntarily consent to the arbitration/alternative dispute resolution agreement?
- 9. Have you had sufficient time to have al of your questions answered by your attorney (if you have one) and if not represented by an attorney are you waiving your right to have an attorney answer any questions you may have regarding the arbitration/alternative dispute resolution agreement
- 10. Do you agree to be bound by the arbitration/alternative dispute resolution agreement?
There are also specific questions that must be answered if the arbitration pertains to child support, custody and/or parenting time:
- 11. Do you understand that an award pertaining to child support, custody or parenting time can be vacated if either you or the other part can establish that it threatens or poses a risk of harm to the child(ren)?
- 12. Do you understand that you will not be able to challenge, vacate, modify, or amend the arbitrator/umpire’s award solely because you think the best interests of your child(ren) are bettered served by a different decision because you disagree with it?
- 13. Do you understand that all documentary evidence and a record of testimony presented during the arbitration/alternative dispute resolution proceeding pertaining to the custody and parenting time of you child(ren) must be maintained and kept?
- 14. Do you understand that you may need to hire a court stenographer, for which you and/or the other party will bear the cost, to transcribe the proceeding or that the arbitrator will have to create a detailed record for review through some other agreed upon methodology?
The Arbitration Questionnaire has been adjudged fulfilled by the same criteria set forth in the body of an Agreement to Arbitrate. However, what must those criteria look like? How can the criteria be fulfilled in the context of an Agreement to Arbitrate without attaching the actual form? Does your Agreement to Arbitrate fulfill all these criteria without attaching the required form?
My next blog post will focus on some of the failures of an Agreement to Arbitrate, where the required waivers associated with the Arbitration Questionnaire have not been fulfilled.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.