Given the shortage of judges, backlog in the system and the rash of new judges, alternative dispute resolution has been coming more and more prevalent in the divore cases. For as long as I can remember, custody and parenting time mediation and Early Settlement Panels have been mandatory in New Jersey. For the last decade,
Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case." In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable. Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn…
For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion. For some issues, like enforcement, one questions the obligation to go to mediation. Either someone violated the agreement or they didn’t. Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay. And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute.
This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion. In this case, the parties divorce agreement stated:
In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:
(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;
(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.
Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes.
There is no secret that New Jersey is suffering a significant crisis with respect to judicial vacancies. This year alone has seen a significant number of retirements without replacements being named. The effect on the family courts, and in particular, the divorce docket, has been catastrophic. I was at a meeting of family lawyers just recently at which the assignment judge of a county in the southern part of the state was kind enough to come and discuss directly with the bar the situation. And while I deeply appreciated the fact that he did, and the efforts that the judges are making to accommodate the needs of the public, the fact of the matter is that the situation is untenable throughout the state. In some counties, the situation is so bad that there are no, I mean no, trials for contested divorce cases. In others, a case will not reach a judge for final disposition for three years, In several counties, judges have upwards of 500 cases to handle. Only a superhuman can give a matter the attention it deserves when having that type of case load.
The purpose of this blog is not to pass blame, nor to comment of the swirl of political posturing that goes on when this subject comes up. Rather, despite the fact that the vast majority of judges that I know are working late nights and weekends, they simply can’t keep up effectively. And that means that attorneys and litigants have to find an alternate method to resolve their cases in order to save money and get on with their lives and those of their children. Any good family lawyer will have an honest conversation about the cost ridden road to the Courthouse. Certainly, there are times that judicial intervention is necessary and as lawyers, we are prepared to take a case to the judge. However, alternate dispute resolution is an important piece of the puzzle.
There are several effective methods of alternative dispute resolution that must be considered by litigants. Some of these are woven into the court system. Some are complimentary to the system. Before filing for divorce, talk with your lawyer to determine whether mediation, or arbitration is a viable option for your situation.
Mediation can occur any time during the process, and can happen with or without attorneys. Many times litigants will agree to go to a mediator to resolve their differences and then the mediator will prepare a memorandum of the agreement that the parties have reviewed by their respective counsel. Sometimes, someone may be uncomfortable going through mediation without legal counsel. In that case, going with a lawyer can be a cost and time effective method to settle the case. When you go with a lawyer, you can make sure that your rights are protected, and you do not agree to anything without having the opportunity to discuss the ramifications.
Generally speaking, New Jersey statutes and court rules cloak settlement negotiations with secrecy (legally, called a “privilege”) such that what goes on in those proceedings are not evidential, that is, they are “privileged” from being disclosed to a court.
Somewhat of an exception arises in cases in which the negotiations produce an oral agreement. Let’s first deal with this in the context of settlement negotiations not in the mediation context. Usually, it happens this way: the parties are participating in a “4-way” settlement session in which each party is present (either physically or by phone), as is their attorneys. Through the negotiations, agreement is reached as to the basic provisions such that both parties walk away from the session thinking that they have reached a binding agreement, albeit oral, subject only to “finalizing” it by reducing it to writing (and filling in details that would normally expand the basic terms during the drafting process), approved by the attorneys, and signed by the parties. One of the parties then changes his or her mind before any written agreement is signed. The other party says “wait a minute, you can’t do that, we had an oral agreement. You can’t change your mind.” The party backing off of the arrangement says “but we did not have a full agreement. There were many terms and details still to be negotiated.”
Recently, I was at a mediation where the mediator, when telling us his assessment of my client’s case, said that he was creating "settlement anxiety." I had never heard this term but what I believe was meant was that the mediator wanted the client to have "anxiety" about his/her position in order to be more likely to…
There are several points I would like to highlight:
- negotiations are confidential and cannot be introduced in court, except for very limited circumstances, but not as to the
As we recently learned from the Fawzy case that we blogged on, parties have a right to private ordering and self determination of how they want to resolve their cases. In Fawzy, the NJ Supreme Court held that people could arbitrate custody matters as long as certain procedural measures were taken.
Can people decide…
"Collaborative Divorce" is defined as a form of alternative dispute resolution for divorcing couples where a team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however…
Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers." It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court…