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.


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 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 . . .”


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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.


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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?


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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.

To

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

I just completed a 10 or so day trial (really a binding arbitration).  Why did it take so long?  Were there complicated valuation issues? No.  Complicated alimony issues? No.  Custody issues?  No – custody and parenting time were already settled. 

The answer in large part was one party’s bad faith and need to extract a pound of flesh.  He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense.  The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007.  The case lingered and trial did not start until the fall 2009.  Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal.  Why – as every knows, real estate values were going down.  Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage.  Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur.  She had to get another one in August 2008 before the trial started.  The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.


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Sometimes, despite all of the parties’ best efforts – or in other cases, where one or both parties have no desire to settle, a case has to be litigated.  Trials are costly, for reasons you would think of, and also, for reasons that most people don’t consider.  A good rule of thumb is that for