Proposed ESP Guidelines

by Charles F. Vuotto, Jr.

This edition of the New Jersey Family Lawyercontains an excellent article by Christopher Musulin, Esq. celebrating the 35^th year that divorcing parties in the state of New Jersey have had the benefit of the Mandatory Early Settlement Program (MESP). As correctly noted by Musulin, the MESP has substantially assisted the Judiciary in resolving matrimonial and other family part matters. However, there is always room for improvement. The author commends the MESP and all of the lawyers who volunteer their time. Nevertheless, the author believes the program would benefit from a clear set of guidelines, which do not presently exist. This column proposes such guidelines.

Before addressing the proposed guidelines, however, it bears repeating that the Rules of Court provide that, “Complementary Dispute Resolution Programs (“CDR”) provided for by these rules are available in the Superior Court and Municipal Courts and constitute an integral part of the judicial process, intended to enhance its quality and efficacy. Attorneys have a responsibility to become familiar with available CDR programs and inform their clients of them.”[i]

The New Jersey Rules of Court provide specifically for MESP under Rule 5:5-5, which provides as follows:

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All vicinages shall establish an Early Settlement Program (ESP), in conjunction with the County Bar Associations, and the Presiding Judges, or designee, shall refer appropriate cases including post-judgment applications to the program based upon review of the pleadings and case information statements submitted by the parties. Parties to cases that have been so referred shall participate in the program as scheduled. The failure of a party to participate in the program or to provide a case information statement or such other required information may result in the assessment of counsel fees and/or dismissal of the non-cooperating party’s pleadings. Not later than five days prior to the scheduled panel session, each party shall be required to provide a submission to the ESP coordinator in the county of venue, with a copy to the designated panelists, if known.

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With the exception of the foregoing, there is no concise and clear list of guidelines applicable to ESP practice. I suggest that a clear list of ESP guidelines be established, as follows:

1. The procedures for each county’s ESP should operate in a uniform and consistent manner.
2. The function of an early settlement panel is threefold:
3. Whenever possible, the panel should effectuate a full settlement of the controversy, including all financial and non-financial issues (i.e., the panel should be permitted to make recommendations with regard to children, custody and timesharing, whereas in the past they have been precluded from doing so). If a panel fully resolves all issues, the case should proceed expeditiously to final uncontested hearing and judgment, even before judges not normally assigned to matrimonial matters.
4. Where full resolution is not practical, the panel should narrow the issues in dispute as much as possible. Stipulations of fact should be employed liberally to preserve judicial resources.
5. The panel should mediate discussions to obtain reasonable stipulations as to discovery and other material matters, not only for purposes of trial but also to further settlement discussions. Where agreement is not possible, the panel should also recommend an appropriate discovery order to the court. The matrimonial judge should then consider the recommendation and the parties’ responses and enter an appropriate order, thereby avoiding the necessity of a formal motion.
6. Each ESP panelshould consist of no less than two panelists (individual counties may expand the number of attorneys on a panel, but may not reduce the number below two).[ii]
7. The selection of ESP panelists should be a joint undertaking of the county bar association and the court. An ESP panelist must have one of the following qualifications:
8. Have practiced primarily in the area of family law for at least 10 years; or
9. Have one of the following qualifications, be a: 1) certified atrimoniallaw attorney;2) past or present member of the executive committee of the Family Law Section of the New Jersey State Bar Association;or 3) a fellow of the New Jersey Chapter of the American Academy of Matrimonial Lawyers.
10. Written ESP submissions shall be required of any party participating in an ESP. ESP submissions should consist of a proposal/position letter regarding all financial and non-financial issues in dispute and should be accompanied by an updated case information statement, including but not limited to, a child support guidelines worksheet, when applicable. The ESP submissions shall be submitted to the ESP coordinator in the county of venue with a copy to each of the designated panelists in hard copy (not by fax or email unless permitted by the panelist) at least 5 days in advance of the panel date.
11. Attorneys or self-represented litigants who fail to comply with the submission requirement may be subject to sanctions in the discretion of the court.
12. All communications incident to participation in the ESP, including but not limited to the submissions or any other writings submitted to the panel, all oral presentations made by counsel or self-represented litigants at the time of the panel and all statements or recommendations made by the panelists shall be deemed absolutely confidential and not disclosed to any third party, mediator, arbitrator or jurist, except with the written consent of all parties and the panelists. In other words, the recommendations of the panelists cannot be used at a later time to argue that an individual has proceeded in bad faith with regard to that party’s positions in the case unless the parties and panelists agree in writing to the disclosure of the panelists’ recommendations.
13. It is the policy of the court that an ESP occur after the time discovery has expired pursuant to the Rules of Court or the last relevant case management order.
14. Cases that are appropriate for an ESP panel include all matters before the family part, either preor post-judgment, with the exception of domestic violence matters (if either or both parties are self-represented), juvenile matters, CP&P matters and children in court matters.
15. ESP panelists who handle a particular case may not thereafter serve in any capacity with regard to the matter they paneled, including but not limited to, representation of either party as the attorney of record; or acting as the mediator, arbitrator, or guardian ad litem. However, an attorney who served on a panel for a particular matter may thereafter serve as a blue ribbon panelist (i.e., a panel retained and paid for by the parties) or as a panelist on a post-judgment matter.
16. An early settlement panel coordinator shall be designated to ensure the program runs efficiently.
17. Absent agreement to the contrary, all ESP’s should occur at the courthouse, so the coordinator, the Court Rules, child support calculators and private meeting facilities are available. Each county should assure the panelists, attorneys and the litigants involved in the ESP have adequate physical space to convene.
18. The ESP should be utilized as an integral part of a comprehensive case management process.
19. After the early settlement panel, non-settled matters shall be scheduled for mandatory economic mediation in accordance with Rule1:40.
20. All who participate in the ESP process should treat the panel hearing as they would a trial appearance in terms of promptness and courtesy.
21. The number of cases presented to an ESP on a particular day should be limited so all cases receive meaningful consideration.
22. The Administrative Office of the Courts (AOC) should maintain certain statistics, such as:
23. Number of cases assigned to the panel;
24. Number of cases settled;
25. Number of cases settled post-hearing and prior to beginning trial;
26. Which matters are pre- or post-judgment; and
27. The time lapsed from the filing of the complaint to early settlement panels.
28. Uniform and standard forms should be encouraged, such as notices of the schedule and submission requirements. A central registry should be established regarding these forms, or the forms should be added to the New Jersey Judiciary’s website.
29. Complicated matters should be referred to mandatory mediation pursuant to Rule1:40, or to a blue ribbon panel. At the conclusion of the ESP, where the case is not fully settled, the court should encourage the parties to select and retain a blue ribbon panel to address their matter. All issues pertaining to the use of ablue ribbon panel should be driven by the unique requirements of each individual matter. The trial judge may also educate the parties on the benefits of arbitration of their disputes.
30. On the day of the scheduled appearance for participation in the ESP, the presiding judge of the family part, or his or her designee responsible for the call of cases to be paneled, shall appear on the record with all of the litigants to explain the ESP and the importance of the parties and their counsel, making every good faith effort to resolve the disputes. In addition, but not instead of, the speech by the judge at the beginning of the day, the litigants should be encouraged to view the video that is currently shown to litigants in the Hudson County vicinage. This should be done prior to the date of the panel. The parties and attorneys may be directed to the video through an Internet link contained within the ESP notice.
31. The attorneys who volunteer their time for the ESP should be publically recognized and should be given preference on lists for their ESPs and on motion days.
32. ESP coordinators should send panelists a list of matters to be paneled at least 30 days in advance of the assigned date, so the panelist may perform appropriate conflict checks. If a panelist is restricted from handling a certain case due to a conflict, that panelist must advise the ESP coordinator immediately, so the case may be transferred to another panel.
33. In the event a panelist is unable to serve on an assigned date, that panelist is responsible for obtaining a substitute panelist from the ESP roster and providing the substitute panelist with all ESP submissions received to date.
34. Recognizing that an attorney should never attempt to handle multiple ESPs on the same date and time,the court should implement a ‘one attorney/one panel’ protocol.
35. Where both parties are represented, it is permissible for the panel to meet with both attorneys before meeting with the litigants. However, the panel must, at some point, meet with the actual litigants to convey their recommendations.

If these guidelines are implemented, it is the author’s belief that the ESP process will be improved for the benefit of the citizens of the state of New Jersey,as well as the professionals who assist them.

The author wishes to thank Christopher Musulin, Esq. for his assistance with this column.

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[1]Rule 1:40-1

[1]Typically, panels throughout the state should be composed of two attorneys. It has been recognized that panels of two attorneys are sufficient to accomplish the purposes of an ESP. Individually counties should recognize, however, that the addition of a third attorney may unduly increase administrative costs and tend to limit the number of available volunteers.