Many people opt for binding arbitration because it is supposedly faster and cheaper, and binding – thus final. Some people have to arbitrate their matters that they cannot settle amongst themselves, because there are issues that they cannot try before a court given the court’s mandatory obligation to report certain matters to the proper authorities
When can a litigant appeal an arbitration award? In the recent decision of K.V.H. v. W.S.H., the New Jersey Appellate Division clarified the procedures by which a party, dissatisfied by the decisions rendered by an arbitrator, can challenge those awards.
In this matter, the defendant appealed from certain provisions of a series of…
Resolving issues pertaining to a divorce matter are not only costly and challenging, but if parties’ choose to litigate their issues before a sitting Family Part Judge, their dirty laundry becomes public record.
In order to resolve divorce litigation in a more private setting, parties have the choice of attending mediation and/or arbitration as alternative…
As we have all seen and heard, alternate dispute resolution (ADR) is all the rage. Two common methods of ADR are mediation and arbitration. To describe the two as simply as possible, in mediation, the parties and their attorneys (and perhaps even their experts), meet with a neutral third party to help them to come…
Matrimonial Arbitration is a form of alternate dispute resolution (ADR). ADR seeks to resolve disputes utilizing a facilitator or tribunal who is not a judge. Sometimes, cases are submitted to ADR without a court action even being filed, in which case, it operates outside of the system and wholly on its own. When the parties resort to ADR during the pendency of the case, while the courts have some control and responsibilities, the process itself takes place in an ancillary fashion to the system.
Let’s define terms.
1. On one end of the spectrum of ADR is mediation, that is, where a third-party attempts to facilitate an agreement between the parties. Nothing is binding if and until an agreement is reached and (usually) reduced to writing and signed by the parties.
2. On the other end of the spectrum is binding arbitration. This is a process of dispute resolution involving a “rent-a-judge” who is appointed by the parties to hear the matter (much as if the parties were in court) and render a binding determination (as distinguished from a decision by a trial court). While the parties can tailor the choice of the arbitrator to the circumstances of the case, only in limited circumstances is an action of the arbitrator appealable.
3. In the center between the two is non-binding arbitration, that is, where a third-party makes a recommendation for settlement which is not binding. The parties can accept it; reject it; or use it as a basis for further negotiation. In New Jersey, this is essentially the function of Early Settlement Programs established in each county to aid in the settlement of matrimonial actions.
Note, then, the differences:
Type of ADR Type of Result
Non-binding arbitration Recommendation
Binding arbitration Determination
Last year, in the Fawzy decision, the New Jersey Supreme Court put procedures in place approving parents’ ability to arbitrate child custody opinion. This specifics of this decision was the subject of a prior blog at the time of the decision. One of the procedural safeguards required by Fawzy was a verbatim record of the proceedings so that there could be meaningful review of the decision by a court. Yesterday, the Supreme Court revisited this issue in the case of Johnson v. Johnson. In May of this year, I previously blogged about this case though at that time, we all thought that the bigger issue for the court’s consideration was whether Fawzy could be retroactively applied.
In Johnson, there was no verbatim record as was required by Fawzy, for the simply reason that the parties had agreed that there was not going to be a verbatim record. They did, however, agree that the arbitrator would provide detailed findings of fact. In fact, the arbitrator did provide extremely detailed findings both in the initial opinion and upon a motion for reconsideration. After Fawzy was decided, an appeal ensued and the arbitration award was set aside for no verbatim record.
The Supreme Court in Johnson started by reminding us of what Fawzy requires with regard to an agreement to arbitrate:
must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1.
In addition, it must state in clear and unmistakable language: (1) that the parties
understand their entitlement to a judicial adjudication of their dispute and are
willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree
to those limitations; (3) that the parties have had sufficient time to consider the
implications of their decision to arbitrate; and (4) that the parties have entered into
the arbitration agreement freely and voluntarily, after due consideration of the
consequences of doing so.
The Supreme Court has granted certification and will hear argument in the case of Johnson v. Johnson. In essence the Supreme Court has agreed to decide whether retroactive application is warranted of its ruling in Fawzy v. Fawzy that parents can arbitrate child custody issues if a thorough record is kept. We have blogged…
Previously both Jennifer Millner Weisberg and I blogged on a highly publicized New Jersey family law case, Fawzy v. Fawzy. To read my prior post on this case, click here. To read Jennifer’s post, click here.
For those of you who may not be familiar with Fawzy, this matter involves parties who opted to participate in binding arbitration as to all outstanding issues in their matter, including a determination of custody and parenting time, as opposed to proceeding with a trial.
Alternate dispute resolution is another method by which parties who have outstanding legal issues between them can select a mutually agreeable individual to serve as a mediator and decide the issues, rather than sit through and bare the expense of an expensive and often lengthy trial. Alternate dispute resolution methods, such as arbitration, are available in nearly every area of the law and not limited to family law matters. People prefer arbitration because it may resolve issues more expeditiously than otherwise having a trial. In addition, the arbitration process can be more informal than deciding issues in a courtroom before a judge. Our courts encourage arbitration as a substitute for litigation. Arbitration conducted by an individual of the parties’ own choosing is often less antagonistic than litigation and may minimize the harmful effects of divorce litigation on a family.
In Faherty v. Faherty, 477 A.2d. 1257 (1984), the New Jersey courts approved the arbitration of alimony and child support issues. So when the Fawzy’s decided to arbitrate the issues of custody and parenting time- what was the problem?
Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances. This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve. As a result, I thought it would be wise to highlight some of the issues again.
Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm’s Pennsylvania Family Law blog, wrote an interesting post on that blog entitled Mediate, Arbitrate, Negotiate: What’s a Client to Do?" To read the post, click here.
Mark’s blog entry goes through the options of alternate dispute resolution. Like Pennsylvania, in New…