The state Supreme Court’s Family Practice Committee is recommending rule changes to establish an arbitration track for family cases for certain family court matters.
Many litigants in family cases already make use of arbitration, but the suggested rule changes would expedite the process and better integrate it into the court case.
The parties would get a year to resolve matters through arbitration, unless they could show "good cause" to extend the period and during that time, they would be entitled to scheduling consideration.
The recommendations are set forth in the committee’s 2011-13 rule report, published on Feb. 18.
A revision to Rule 5:1-4 would add a fifth track for arbitration to the four existing ones — standard, complex, priority and expedited.
A proposed new Rule 5:1-5 provides that "parties to any proceeding arising from a family or family-type relationship" could opt for the arbitration track at any point by signing a consent order or arbitration agreement.
Annulments and dissolutions would still have to be done by the court, and some matters could not be arbitrated: domestic violence, juvenile delinquency, family crisis and adoption actions, as well as those involving the Division of Child Protection and Permanency, formerly known as the Division of Youth and Family Services.
Parties would not have to arbitrate every issue and could expand or narrow the scope of the arbitration down the road.
Before agreeing to arbitrate, litigants would have to fill out and sign a court-supplied questionnaire, designed to ensure they understand they are waiving their rights to have a judge decide the issues, to have them decided pursuant to the Rules of Evidence and to appeal an adverse decision by the arbitrator, who could decide custody, parenting and finance matters.
The questionnaire, appended to the report, specifically asks whether the parties have read the arbitration agreement, discussed it with counsel and had all questions about it satisfactorily answered.
It also makes sure they know that, in addition to paying the arbitrator’s fees, they must bear the cost of a court stenographer to transcribe the proceedings.
No specific arbitral framework is prescribed, but sample agreements are provided for arbitrating under New Jersey’s Alternative Procedure for Dispute Resolution Act or Uniform Arbitration Act.
The Uniform Arbitration Act form of agreement provides them the option to expand the scope for review of the award, to say whether New Jersey law applies and to require that the arbitral award be in writing with findings of fact and conclusions of law.
Parties can pick one or more arbitrators who must execute a disclosure form, and they get one year for arbitration unless the court finds good cause to extend it.
Arbitrations would be "given scheduling consideration when fixing trial dates in other matters."
John Paone Jr., president of the New Jersey chapter of the American Academy of Matrimonial Lawyers (AAML-NJ), says the proposed rule would resolve the problem of what happens to the underlying divorce action when the parties decide to arbitrate.
With more and more cases going to arbitration in the wake of Fawzy v. Fawzy, 199 N.J. 456 (2009), which held child custody issues are arbitrable, judges have generally taken one of two approaches, he says. Some put the divorce through, leaving the rest of the case to be arbitrated, while others place the case on hold until arbitration is done.
The problem has been that with no one monitoring the situation, "sometimes the cases go off to never-never land," says Paone, of Paone Zaleski & Brown in Woodbridge. The one-year time limit would help prevent courts from losing track of arbitrated cases and ensure that arbitration is completed within a reasonable time, he adds.
He sees the proposed arbitration track as an attempt to bring uniformity to a process that is playing a bigger and bigger role.
One reason for the growth is Fawzy, because it allows parties with custody issues to arbitrate the entire case rather than being limited to a piecemeal approach, he says.
Another is the shortage of judges, and the resulting court backlogs, which have motivated litigants to look for alternatives, says Paone.
"At the end of the day, you can get a retired judge, someone who has been doing this work for a much longer time" than perhaps a judge with just a few years on the bench, he says.
Paone points out that the attempt to lay out a path to arbitration under one of two existing statutory schemes should prove helpful in short-circuiting potential disputes over how to proceed. When parties pick which statute to proceed under, they will have a form of agreement ready and waiting.
The questionnaire is a good idea, too, because people need to know they are giving up their rights and it will prevent them from claiming later that they did not realize they were doing so or that their lawyers did not properly advise them, he says.
Paone also welcomes the scheduling provision, saying it will keep judges from saying they don’t care when a scheduled arbitration conflicts with a trial date. "If we’re going to respect arbitration, we’re going to have to let that process … go forward without treating it as a stepchild."
AAML-NJ president-elect Cary Cheifetz says the rule will change the current practice of conducting arbitration as a kind of underground system, where "you’d be in arbitration and still have these court events and you’d have to dismiss your cases."
He worries that one year is not long enough for the more complex cases that he sees as more likely to go to arbitration and notes that "good cause" for extending the time is not defined and might be hard to prove based on complexity when that is a general characteristic.
Cheifetz also wonders whether cases on the arbitration track will still be sent to settlement panels, which the rule does not address.
Despite his concerns, he believes that if adopted, the rule will change the practice. "You’re going to see a lot more cases diverted out of the system" and "when clients go to case management conferences, judges are going to be talking with the lawyers about sending the cases to arbitration," says Cheifetz, of Ceconi & Cheifetz in Summit.
Family court practitioner Amanda Trigg, of Lesnevich & Marzano-Lesnevich in Hackensack, says the rule would formalize and legitimize arbitration of family cases and make the process smoother, in contrast to "the way we are trying to piece it together."
Comments on the report are due by April 1.