Arbitrations can sometimes take on a more informal tone than an in-court proceeding. The entire vibe of the proceeding can be more relaxed; there’s usually no bailiff, nobody is wearing a black robe, and many of the formalities attorneys go through – such as standing when addressing the trier of fact – are dispensed with as well.
However, sometimes that informality is taken too far. This may happen where there is a well-meaning dayan who is trying his best to get to the truth of the matter. He may start calling in third parties, or having conversations with psychological experts about a party’s mental status. Sometimes, he’ll even pick of the phone and call a party in an effort to resolve a parenting dispute, without the other party present.
In such a case, the Bais Din becomes somewhat of a Frankenstein-esque Monster of a would-be legal forum – acting as a convoluted amalgamation of the roles of mediator, arbitrator, and Guardian ad litem, all at the same time, which is expressly prohibited and could undermine the entire proceeding if challenged.
While an arbitrator is permitted to take on dual roles of mediator and arbitrator provided the parties agree (as set forth in Mikowitz v. Israeli), Fawzy v. Fawzy – the seminal New Jersey case permitting arbitrations in custody matters – prohibited an arbitrator from taking on the simultaneous or staggered roles of guardian ad litem and arbitrator.
Pursuant to R. 5:8B(a), a judge may appoint a guardian ad litem to render service “to the court on behalf of the child.” The role is investigative by nature, as the function of a guardian ad litem is to “serve as an independent factfinder, investigator, and evaluator of what furthers the best interests of the child.”
As noted by the Court in Fawzy, given that the purpose of the guardian ad litem is to aid the trier of fact in reaching a decision about the best interests of the child, the guardian ad litem must be available to testify and be subject to cross-examination. Thus, the Court in Fawzy held that where an arbitrator is substituted for a judge, he cannot function simultaneously as the guardian ad litem.
However, that is not where the Fawzy Court ended its observations about the inherent conflict of a hybrid arbitrator-guardian ad litem role. The Court went on to hold that even if an individual is no longer performing services as guardian ad litem, that individual cannot subsequently go on to act as arbitrator. Just as in Minkowitz, the Court here emphasized the importance of an independent trier of fact:
[…] an arbitrator, like a judge, is supposed to rule based on the evidence adduced by the parties during the arbitration proceedings and not on information that he has privately gleaned from other sources. Where, in his role as guardian ad litem, one who is later chosen to arbitrate has personally investigated the matter, he may be privy to factors about which the parties have no knowledge and which thus have not been tested in the crucible of cross-examination. That is a confounding factor in the exercise of the judicial role.
Of further concern to the Fawzy Court was the potential that a guardian ad litem may have compromised impartiality based on the relationships he forged with the parties or their collaterals during his or her investigation, a possibility that is squarely at odds with the paramount need for an arbitrator to be impartial pursuant to the statute regulating arbitrations in New Jersey, N.J.S.A. 2A:23B-23(a).
Finally, the Court found it problematic that one who acts as both guardian ad litem and arbitrator could not testify in the event that the case were to return to court for adjudication by a judge, because N.J.S.A. 2A:23B-14 prohibits an arbitrator from becoming a witness except in the limited case of a challenge to an arbitration award based on corruption, fraud, or undue means.
Put another way, the guardian ad litem would be engaged to investigate on behalf of the Court, only to be unable to testify and aid the Court in its determination as to the best interests of the child. As a result, the Fawzy Court concluded that it is “obvious that a guardian ad litem should not be tapped to fulfill both roles either simultaneously or sequentially.”
What is the takeaway if you are going through a custody arbitration in the Bais Din?
Be on the lookout for behavior on the part of the Dayanim that is investigatory in nature, as opposed to adjudicative. Do not accept offers to speak outside the presence of the other party, even if you think it will help you reach a resolution faster. Speak with your attorney about setting boundaries that comport with the law to ensure the integrity of the entire proceeding.
Just because a case is in Bais Din does not mean all involved should throw caution to the wind and engage in a free-for-all resolution of a custody matter. You can have a successful and legally sound outcome; but only if you are vigilant in ensuring that it cannot be challenged later on because the entire proceeding ran afoul of Fawzy.
An attorney well-versed in the requirements surrounding the Bais Din’s custody arbitration requirements is indispensable to ensure your matter is in Bais Din is proceeding as required under the law.
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.