One of the first options to consider when you start your divorce is whether you want to proceed through litigation, mediation, or arbitration.
In general, at the outset of a
Continue Reading Be Prepared for Your Divorce Series: Part III – Litigation, Mediation, or Arbitration?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what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.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.
Last week, Larry Cutler posted a piece on this blog entitled "Are Mediation Proceedings Really Sacred and Secret?" The inspiration for this post was a recent published Appellate Division case Willingboro Mall, Ltd.
Continue Reading If a Tree Falls During Mediation, Can the Mediator Tell Anyone About It?
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 . . .”
Following on the heels of Eric Solotoff’s recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues. In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator’s involvement in the highly contentious matter.
Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order. In response to the plaintiff’s indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court. A major issue of contention at both the trial level and on appeal was the parenting coordinator’s indication that she would charge the plaintiff for her time taken to respond to his numerous grievances.
After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator’s fees owed. The trial judge ultimately found for the coordinator, concluding that the plaintiff’s grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.
Continue Reading NEW APPELLATE DIVISION DECISION REGARDING PARENTING COORDINATOR GRIEVANCES AND FEES
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
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
Continue Reading "Settlement Anxiety" – An Effective Tool or an Unfair One?
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