Last year, I blogged on this topic after 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." At the time, I had never heard of this term but what I believed was meant was that the mediator wanted the client to
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 . . .”
A common misconception in New Jersey is that both spouses can use the same attorney for their divorce. My local paper recently had an article about divorces in the current economy. One attorney was quoted as intimating that this was true; the attorney was speaking of uncontested divorces in which the parties agree on issues and the seek the dissolution of their marriage. While I am certain that the attorney’s comments were taken out of context, as one of the points in the article was a concern about legal fees, this is a question that comes to me often. A client will ask me if I can represent both spouses, even if they have an agreement. The answer is a resounding, no.
The ethics rules in our state are very clear that one attorney cannot represent both spouses in a divorce. Simply, it is a conflict of interest. The New Jersey Supreme Court has said on many occasions, that “one of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests."( In re Opinion No. 653 of the Advisory Comm. on Prof’l Ethics, 132 N.J. 124, 129 (1993)). Our state has a very strong policy in which there should not be even an “appearance” of a possible conflict of interest. This is to protect the clients.
Imagine a scenario in which one spouse has been home raising children, and the other has been working throughout a twenty year marriage. This is a situation in which alimony will be an issue. Certainly, the non working spouse and the working spouse may have differing positions about the amount and term of alimony. Most people agree that in these circumstances, the parties will want to have their own attorneys. But what about the situations where both parties are working, and they have a house and a couple of retirement accounts. Many people believe that in this situation, they do not need two attorneys and both use the same lawyer. Well, they can’t.
The Appellate Division recently issued a reminder in Ort v. Ort, A-3535-06T1 (App. Div. June 17, 2008) that, unlike a parenting time coordinator, a custody and visitation mediator may only “assist the parties in resolving disputes as to major decisions regarding the children,” and “may not make any recommendation to the court respecting custody…
While statistically, 99% of all cases settle, some cases take longer than others to get there. Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.
I, for one, have been skeptical of…