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Newark, N.J.�Calling mandatory arbitration a poor substitute for good lawyering and a “bureaucratic waste,” the New Jersey State Bar Association is pushing to eliminate it. A blistering report by a committee on arbitration urges the adoption of a multiple-option alternative dispute resolution (ADR) program similar to one used in some federal districts. The committee recommends using mediation, with arbitration optional as one of a variety of ADR resolutions available. The report was sent to New Jersey Chief Justice Deborah Poritz in early November and made public last week. It says the system has too many inexperienced arbitrators and built-in problems, such as friendships among lawyers, unavoidable biases of arbitrators and conflicts that arise through some lawyers’ relationships with carriers. Although the perceived failure of arbitration has not led to more cases going to trial-only 6.3% of trial de novo requests go to a jury-there is a high rate of rejection of arbitration awards-more than 72%, the report said. “This evaluation of the current system offers an opportunity for New Jersey to embrace national trends toward mediation, and other innovative dispute resolution reforms,” Karol Corbin Walker, president of the state bar, said in a statement that accompanied the report. “This multi-optional system, which has proven successful in federal courts, would substitute New Jersey’s one-size-fits-all approach with a new dynamic allowing parties to tailor the appropriate complimentary dispute resolution (CDR) device to their particular case,” she added. As the state bar sees it, the bottom line is that the system is defeating the goals of arbitration by increasing costs to parties, delaying adjudication of cases and adding to court congestion. The report deems the process a failure, despite positive reports from the state Administrative Office of the Courts. Most objectionable, said the report, is the high rate of rejection of arbitration awards. For the court year ending in August 2001, 19,774 of 27,285 arbitrated cases, or 72.5%, were rejected. That rejection rate was higher for auto cases, which constitute almost two-thirds of those arbitrated. For the 2000-01 year, the latest figures available, 74.3% of the 12,897 cases arbitrated resulted in a de novo request. That’s up from 48.8% in 1990. Auto cases Most rejections come from the defense, particularly in auto cases. And that rate continues to rise. Defense lawyers accounted for 82.2% of de novo requests in 2002, up from 55% in 1987. That increase “reflects either unremitting and increasing dissatisfaction with the system, or worse, a conscious abuse,” the bar report said. Richard J. Williams, administrative director of New Jersey courts, asserted that the report’s “conclusions are at variance with our experience and the views of numerous attorneys and local bar associations.” Lewis Stein, who chaired the arbitration committee, said, “At some point, we must separate the opinions of those with a vested interest in this system and realize that any system rejected 75% of the time is a failed system.”

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