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Arbitration & Mediation

NJ Arbitration and Mediation

As recently emphasized by the Supreme Court in the case of Fawzy v. Fawzy, 199 N.J. 456 (2009) “our courts have long noted our public policy that encourages the use of arbitration proceedings as an alternative forum.”   Our Supreme Court went on to state that the objective of arbitration is,

[t]he final disposition, in a speedy, inexpensive, expeditious and perhaps less formal manner, of the controversial differences between parties. Arbitration can attain its goal of providing final, speedy and inexpensive settlement of disputes only if judicial interference with the process is minimized; it is, after all, meant to be a substitute for and not a springboard for litigation.

Over 25 years ago, the New Jersey Supreme Court in Faherty v. Faherty, 97 N.J. 99 (1984) approved the arbitration of some family law issues, alimony and child support in particular.  The Supreme Court reserved on arbitrating custody and time sharing.  The reservation left open in Faherty was resolved by the Fawzy Supreme Court, which now permits the arbitration of custody and time sharing issues.  The Court conditioned these arbitrations upon compliance with certain prerequisites and the application of a modified standard of review. 

Further buttressing these positions are the Bounds of Advocacy promulgated by the American Academy of Matrimonial Lawyers (“AAML”).  As stated in the Preliminary Statement of the Bounds of Advocacy, “few human problems are as emotional, complicated or seem so important as those problems people bring to matrimonial lawyers.”  The Bounds of Advocacy reflect the availability of additional ways to resolve disputes.  The Bounds of Advocacy specifically state that “Advocacy skills may also be used to a client’s advantage in arbitration or mediation.  An effective advocate’s stock and trade is the power to persuade.”  This power to persuade is not necessarily limited to courtroom advocacy.  The following paragraph from the Preliminary Statement is especially important to consider:

The traditional view of the matrimonial lawyer (a view still held by many practitioners) is of the zealous advocate whose only job is to win [footnote omitted].  However, the emphasis on zealous representation of individual clients in criminal and some civil cases is not always appropriate in family law matters.  Public opinion (both within and outside the AAML), has increasingly supported other models of lawyering and goals of conflict resolution in appropriate cases.  A counseling, problem solving approach for people in need of help in resolving issues and conflicts within the family is one model; this is sometimes referred to as ‘constructive advocacy.’  Mediation and Arbitration offer alternative models.  Mediation is a method of resolving disputes in which a trusted neutral attempts to facilitate a compromise between the parties.  Arbitration involves the hiring of a respected neutral to hear both sides, then make decisions that will resolve the controversy.

The client’s best interests include the well being of children, family peace, and economic stability.  Trial is an extremely costly endeavor, both in dollars, disruption of one’s daily life and emotional upheaval.  It is rarely (if ever) in anyone’s best interest.

Arbitration and mediation are exploding in light of the economy, increase in family law filings and decreasing judicial resources.  Mr. Vuotto has been on the cutting edge of these issues as is evidenced from the various articles and columns that he has written along with his involvement in drafting a Family Law Arbitration Statute, which was submitted to the New Jersey State Bar Association while he was Chair of the Family Law Section.   

By Order entered July 27, 2015, the Chief Justice of New Jersey Supreme Court, Stuart Rabner, effectuated substantial amendments to the rules governing the courts of the State of New Jersey effective September 1, 2015. Part and parcel of those revisions to the Rules of Court included a sea change in the arbitration of family law matters. The new and amended rules as well as related forms that are now part of the Appendix to the Rules of Court found their origin in the pronouncements of Justice Virginia Long about six years ago in Fawzy v. Fawzy, 199 N.J. 456, 482 (2009). As a result of Justice Long’s direction, the Supreme Court created the Ad Hoc Committee on the Arbitration of Family Matters (“Ad Hoc Committee”). The Ad Hoc Committee was established to formulate rules, forms and procedures to address arbitration in family law matters. It worked diligently to carry out its task from the time it was created in or about December of 2013 to the date that the Ad Hoc Committee issued its report on February 9, 2015. Mr. Vuotto was a member of that committee.

As indicated in the Ad Hoc Committee’s report, Fawzy charged the Supreme Court Family Practice Committee with developing forms and procedures for the arbitration of family law matters pursuant to the Uniform Arbitration Act (“UAA”) (to wit: N.J.S.A. 2A:23B-1 to 32). The report goes on to explain that Johnson v. Johnson, 204 N.J. 529 (2010) extended the charge to include the Alternative Procedure for Dispute Resolution Act (“APDRA”) (to wit: N.J.S.A. 2A:23A-1 to 9). The Ad Hoc Committee’s report goes on to note that, in furtherance of the court’s charge in Fawzy, with additional considerations under Johnson that the Family Part Practice Committee developed forms and a script in its 2009 – 2011 cycle, and again in the 2011-2013 cycle. The proposed rules, forms and procedures were developed by the committee and presented to the court. Each attempt, however, resulted in a submission that was rejected by the court due to differences in opinion from the public on the intent of the applicable case law and statutes. As explained in the Ad Hoc Committee’s report, “members of the public argued that the proposed forms were confusing, complicated and lengthy, made the arbitration process too similar to litigation, did not provide procedures for the review and enforcement of awards and were inconsistent and unclear.” Therefore, the Ad Hoc Committee “was selected to address the concerns of the public and develop a procedure that was acceptable to all parties.” As such, “the Ad Hoc Committee was comprised of representatives from the judiciary, the family bar and the civil bar including experts on arbitration.” In the course of complying with their charge, the Ad Hoc committee drafted amendments to existing rules, new rules, a questionnaire for litigants to answer and sign, a disclosure form for the arbitrator/umpire to sign and two form agreements (one under the UAA and one under the APDRA) to “formalize the procedures and to address the concerns that were previously raised through the public comments.” These new rules and forms will significantly assist divorcing parties in resolving their disputes outside the courtroom.

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