B.M. – that is before the Minkowitz decision that we previously blogged on (which lead to a second post on arbitration best practices), it was common practice at the start of an arbitration, just like it is common practice before the start of a trial, to take one last crack at trying a case.
Best Practices for Divorce Arbitration
As noted in yesterday’s post on Minkowitz v. Israeli, the Appellate Division held that once you serve as a mediator, cannot then serve as an arbitrator, absent prior written consent to the dual role. But the decision written by Judge Lihotz did more than that. She seemingly opined upon what should be the “best
Appellate Division Says That Mediator Cannot Then Serve as Arbitrator
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,
How Not to Settle Your Case – Part II
Last year, I wrote on this blog about “How to Not Settle Your Case.” This case on the heels of several months of “interesting”, to say the least, negotiations on several matters which got me thinking about creating a list of things to do if you really don’t want to settle your case.
New Arbitration Track Proposed in Family Matters
There can be many benefits to arbitrating your case, rather than litigating your case through the court system including, but not limited to, a faster proceeding, a more amicable process, decreased litigation costs (despite having to pay the arbitrator), a jointly selected person to preside over your case (perhaps a retired family court judge or an experienced family law attorney), and greater privacy in your matter (especially encouraged in matters involving potential tax issues). In a move designed to further the use of this private, alternative dispute resolution method between parties in family law matters, the Supreme Court of New Jersey Family Practice Committee has proposed a new “arbitration track”.
Interestingly, this new rule would allow the court system to still keep an eye over your matter, impose time limits on the length of the matter, provide specific procedures for parties to follow, and actually incentivize parties to consider this method by giving priority to an arbitration, as if it were an actual trial.
How to Not Settle Your Case
Having just experienced several months of "interesting", to say the least, negotiations on several matters, it got me thinking about creating a list of things to do if you really don’t want to settle your case. Hey, every body is entitled to their day in court if they want it. So what if there is
Another Day, Another Judge Lost
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.
Arbitration of Children Issues
Previous blogs on this site have dealt with arbitration of various aspects of matrimonial disputes. N.H. v. H.H. is another in the developing law of arbitration of family law issues. This article will deal with the subject of arbitration in the context of children issues, as the financial issues raised on appeal are less timely and more routine (as the law is well-developed in this area) as the issues relating to the children.
By way of background, the parties’ agreement in this case provided that they would be bound by the recommendations of an appointed psychologist who had been retained by them to conduct a custody evaluation and to render written report. Their agreement articulated that they desired this procedure in order to avoid “ . . . lengthy, protracted and divisive litigation over custody and parenting time issues . . .” In such posture, they agreed “. . . to be bound and to abide by the recommendations set forth in [the psychologist’s] report and to implement said recommendations immediately upon receipt of [the] report.”
The foregoing agreement came about in the context of the alternative dispute resolution method known as mediation in which the parties had first engaged the services of an extraordinarily well-respected former judge who had extensive experience in both the Family Part and the Appellate Division in reconciliation, but then switched his role to one of mediator.
After his investigation, the psychologist rendered a ninety-three page evaluation. In viewing the report, the Appellate Division went on for pages to describe in excruciating detail the methodology employed by the psychologist. The parties, the mediator, and the psychologist thereafter met to discuss the report. During that meeting, additional events concerning the issue of the wife’s consumption of alcohol in front of the children came to light. Thereafter, the psychologist supplemented his report in which he opined that the wife was in need of inpatient treatment, and recommended supervised parenting time with the children.
In response, the wife sought a judicial determination whereby the court would adopt the psychologist’s initial report, but reject the supplemental report. That application was denied by the court, effectively leaving both reports intact. Thereafter, the husband requested a determination that the agreement was enforceable and sought economic relief, and the wife cross-moved for various forms of relief including setting aside the agreement. Upon consideration, the court denied her application relative to the economic aspects of the agreement, but granted her request to set aside the custody and parenting provisions.
Disqualification of a Decision-Maker
The most timely and important issue in the recent Appellate Division case of N.H. v. H.H. dealt with the rapidly developing law of the alternative process of arbitration in the family law context, and in that case, particularly as that process relates to children issues. That is the subject of a companion article on this blog.
Another issue of note to litigants raised by this case relate to claims of litigants as to lack of impartiality (bias and/or prejudice) of a decision-maker, whether the title be a judge, an expert rendering a report, a mediator or an arbitrator.
In this case, the Wife argued that the mediator’s prior role in the parties’ attempt at reconciliation “perverted” his ability to act as an impartial mediator, particularly due to his acquaintance with the Husband (an attorney). The reviewing court found nothing in the record to substantiate such a claim. In so finding, Judge Harris said that “. . . illusory or metaphysical doubts about the performance of a mediator’s services will not suffice to engender an erosion of confidence in the product of such process”
The significance of this aspect of the case encompasses legal resolutions far beyond that limited to the process of mediation. Many times a litigant will so totally disagree with a judge’s determination that he or she will characterize the judge’s attitude as being biased or prejudiced. During a proceeding, the process of addressing these issues is known as disqualification, and is governed by Rule 1:12-1(f) of the New Jersey Rules of Court. It provides (among other things) that a judge should disqualify himself or herself when there is any “. . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” Cannon 3 of the Code of Judicial Conduct provides for disqualification for “personal bias or prejudice . . .”
Matrimonial Arbitration is on Its Way
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
Mediation Negotiation
Non-binding arbitration Recommendation
Binding arbitration Determination