(973) 403-9200
by Charles F. Vuotto Jr.
The amount of statewide judicial vacancies has led to the creation of severe measures in various counties, particularly two of the state’s most populous ones—Bergen County and Essex County, with Essex County bearing the heaviest docket.1 As of Sept. 1, 2014, Bergen County will have nine vacancies.2As a result, in a notice to the bar made public Aug. 4, 2014, Bergen County Assignment Judge Peter Doyne announced that as of Sept. 15, 2014, “there shall be no trials conducted in the Civil or Family Divisions which are expected to last longer than two weeks, subject of course, to the discretion of the Presiding Judge and any orders that may have been entered previously.”3In making this decision, Judge Doyne indicated “I do so reluctantly, but with the understanding that it is my obligation to attempt to ensure this vicinage addresses the matters of as many litigants as we can within a reasonable time period.”4
While understanding that this ‘freeze’ was necessary as a matter of last resort, and that Judge Doyne did what he had to in order to keep the docket in Bergen County moving forward, New Jersey State Bar Association President Paris Eliades called it “a form of coercion when you’re settling because your day in court has been denied.”5
NJSBA President Eliades took charge and called upon Governor Chris Christie and legislative leadership to address the ongoing crisis of judicial vacancies. President Eliades sent a letter to Governor Christie, Senate President Stephen M. Sweeney, and Senate Minority Leader Thomas H. Kean Jr., urging action on the vacancies.6 In his letter, President Eliades indicated:
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New Jersey’s judiciary is facing a crisis…With 52 vacancies and another 12 looming, our judges are stretched beyond reason. They are struggling to meet justifiable needs of the citizens of the state who have every right to look to their courts to settle their grievances in the manner contemplated by the constitution and our democracy. As a result of these unprecedented numbers, judges are carrying staggering caseloads and court officials are turning to desperate measures, leading to delays and hardships for people seeking divorces, the resolution of business disputes and many other cases.7
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President Eliades went on to say, in part, “the solution lies in your capable hands. We urge you to put aside any personal and political differences and focus on the constitutional mandate to fill these trial court vacancies immediately….”8
According to the notices to the bar contained in the Aug. 25, 2014 issue of the New Jersey Law Journal, the New Jersey Senate, on Aug. 18, 2014, unanimously approved eight new superior court judges for Essex County.Four of those judges have been assigned to the Family Division as follows: Judge Linda Lordi Cavanaugh, Judge Neil N. Jasey, Judge MarysolRosero and Judge Marcella Matos Wilson.9
A close review of the New Jersey Judiciary Superior Court Caseload Reference Guide from 2009-2013 regarding the family part reveals some interesting figures.13 There has been a decrease in the overall family part filings from 2012to 2013 in almost every New Jersey county, ranging from a one percent decrease in Passaic County and Sussex County to a 10 percent decrease in Monmouth County and an 11 percent decrease (the most in the state) in Morris County.14 Gloucester County’s family part filings increased from 2012-2013 by one percent.
Yet despite the decrease in filings in Monmouth County, there were 228 backlogged cases in 201215 compared with 286 backlogged cases in 2013.16 In Ocean County the backlogged cases grew from three to five percent,and in Cumberland County the backlogged cases grew from two to four percent.
The increasing amount of judicial vacancies, which both the governor and the Legislature cannot seem to diminish significantly, coupled with the resulting backlog of cases when filings have decreased,reveal a fact we all know to be true—judges are overburdened with cases and the court system may not be situated to handle the problem. Thus, the bench and bar need to collaborate to arrive at modifications to our legal system to rectify these serious and very real ramifications. This author suggests that part of the solution is a combination of the early use of mandatory complementary dispute resolution (CDR) and judicial referral to arbitration, as detailed below.
Author’s Suggestions
On Nov. 22, 2004, New Jersey passed the Uniform Mediation Act (UMA).17 The purpose of the law was to establish uniform standards and procedures for mediation and mediators. The UMA was passed to protect those who choose to resolve their disputes through mediation.18 As defined by the UMA, “[m]ediation means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.”19″A mediator, although neutral, often takes an active role in promoting candid dialogue by identifying issues [and] encouraging parties to accommodate each other[‘s] interests.”20
A superior court or municipal court judge may require the parties to attend a mediation session at any time following the filing of a complaint.21Furthermore, in mediation of economic aspects of family actions, parties are required to provide accurate and complete information to the mediator and to each other, including but not limited to tax returns, case information statements, and appraisal reports. Thus, while the court system is already permitted by rule to mandate the participation in mediation, it does not occur early enough in the process. Why not make participation in mediation an automatic first step after filing a complaint?
Currently, complementary dispute resolution (CDR) is a program that judicial systems in New Jersey and around the country are using to attempt to reduce overfilled court dockets, costly trials and the time it takes parties to resolve their disputes.22 CDR can include mandatory mediation. “Mandatory mediation is a form of alternative dispute resolution that requires participants to go through a mediation process before, or in lieu of, court proceedings. Unlike voluntary mediation, mandatory mediation may sometimes be required by an existing contract or ordered by a judge. Proponents feel that mandatory mediation can help reduce the court case load, allowing parties in a suit time to work out their issues with assistance instead of relying on a judge to settle the issue.”23
Implementing mandatory mediation in New Jersey family matters prior to court involvement can significantly reduce backlog. Many litigants already include clauses in agreements that require parties to attend mediation prior to filing, should an issue arise. The creation of a formal rule requiring a party to attend mediation prior to filing with the court, with the exception of the initial complaint, is a logical extension of this sound philosophy. Parties should use the services of a mediator as a neutral third party at the commencement of a case in order to assist with the exchange of critical information and documentation, and to resolve all pendente lite issues without the need for filing and in an attempt to alleviate backlog in the court dockets. For example, litigants in Tennessee are guided by the Tennessee Statutory Code, which states in part, “…reflect the determination that, in the circumstances present, mediation should be undertaken prior to Court involvement (emphasis added).24
Further, in Delaware mediation is required in virtually all civil cases (more specifically in custody, visitation, child support and guardianship matters). The court believes that all parties should attempt to mediate their differences and reach an agreement.25
The benefits of mediation are numerous, including allowing a party to control the outcome, reducing court dockets, and minimizing legal fees. Thus, why not make it a mandatory first step?
In the author’s article entitled Equal Protection for Arbitration,26 the Supreme Court is quoted in the case of Fawzy v. Fawzy,27 where it emphasized that ‘our courts have long noted our public policy that encourages the use of arbitration proceedings as an alternative forum.’28 The 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.”29
After attending an early settlement panel, litigants are provided with a list of qualified mediators. Why not also provide litigants with a list of appropriately trained arbitrators? Of course, the court should simultaneously be required to inform litigants of the pros and cons of attending arbitration. One problem, however, is that to the best knowledge and belief of this author, arbitration training is only provided by the American Academy of Matrimonial Lawyer’s (AAML), while New Jersey mediators, after completion of the training requirements provided for in Rule 1:40, et seq., (specifically, Rule 1:40-12), may become “Qualified by the Supreme Court of New Jersey to mediate family law matters.”
Rule 4:21A-2 provides for the qualification, selection, assignment and compensation of arbitrators. Rule 4:21A-2(b) provides, in part, that if parties fail to stipulate to arbitrators, the arbitrator shall be designated by the Civil Division manager from the roster of arbitrators maintained by the assignment judge on recommendation of the arbitrator selection committee of the county bar association.30 “Inclusion on the roster shall be limited to retired judges of any court of this State who are not on recall and attorneys admitted to practice in this State having at least seven years of experience in New Jersey in any of the substantive areas of law subject to arbitration under these rules, and who have completed the training and continuing education required by R. 1:40-12(c).”31 It is this author’s understanding that the training requirements detailed in Rule 1:40-12(c) pertain to arbitration of personal injury protection (PIP) litigation matters. That section of the rule makes no reference to the training provided to family law arbitrators by the AAML or any other group (if one were to exist). This author suggests the Supreme Court amend Rule 1:40-12(c) to acknowledge the training provided to New Jersey family arbitrators by the AAML and provide similar training courses to those provided to mediators, so family law practitioners can obtain the designation of “Qualified by the Supreme Court of New Jersey to Arbitrate Family Law Matters.”Further, judges should be required to not only discuss the benefits of mediation, but also the benefits and risks of attending binding arbitration by an appropriately trained arbitrator.
Mediation, arbitration and collaborative law are all terms and programs that contemporary judicial systems are using to reduce overfilled court dockets, costly trials and the time it takes parties to resolve their disputes.32 Therefore, judges should be required to address each and every one of these alternatives at an initial case management conference.More often than not, litigants do not understand the options available to them for resolving their issues, and will end up spending thousands of dollars in court while they could have resorted to what is usually a more effective, cost saving and confidential method outside of the court. Thus, it is this author’s suggestion that all judges should be required to inform litigants of their right to attend non-binding mediation, binding arbitration, and perhaps other forms of CDR during the first scheduled case management conference. For case management orders submitted by consent, requiring no appearance by the parties, when returning the ‘filed’ case management order, the court should provide documentation to the litigants regarding their rights to CDR, including arbitration, along with a list of qualified family law arbitrators.
Conclusion
The increasing number of judicial vacancies, and the government’s difficulty filling these vacancies, has left New Jersey judges overburdened with cases, which the court system seems ill-equipped to handle. The resulting increase in backlog will only continue to grow unless our system is modified. Without question, part of the solution includes improving bench-bar relations. Attorneys and judges need to work together to develop general and specific approaches to resolve pending matters. Further, judges who wish to remain in the family part should be permitted to do so, and not rotated out. As aptly stated by Jeralyn Lawrence, the current chair of the Family Law Section of the New Jersey State Bar Association in the August 25 New Jersey Law Journal, “As family lawyers, our approach should not be to attack and criticize those that are already working too hard, but to remain a unified profession, support one another, learn from one another and find collaborative and collective ways to resolve problems in our profession.33 Such “collective ways” should include the use of early mandatory mediation, judicial referral to arbitration and addressing all forms of CDR at the first case management conference. Such tweaks to the system should help reduce the need for court filings; help reduce overfilled court dockets and costly trials; and help reduce the time it takes parties to resolve their disputes.
Finally, perhaps the best support for my suggestion to re-direct litigants to the CDR process early in the process is a quote from Lawrence Tribe, Harvard law professor and co-author with Joshua Matz, of the book Uncertain Justice: The Roberts Court and the Constitution.”Tribe, whose students include Chief Justice John Roberts, was recently a guest on the Leonard Lopate Show on WNYC.org, where he stated:
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When anger, resentment, disappointment, shame, and guilt are ingredients in divorce, it’s no wonder that the first reaction of the parties involved is going to court to resolve their conflict.In reality, the Supreme Court Justices genuinely believe that litigation is not a great way to solve many problems. They genuinely believe that dispute resolution mechanisms like arbitration are better.34
…Courts can say no a lot more easily than they can push in the direction of yes. The courts are much better invalidating injustices…than in actually making things go forward.35
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Thus, this author suggests the bench and bar take immediate action,as proposed herein, to help resolve the growing problems in our system. The suggestions proposed herein will help us get to “yes” more easily.
The author would like to give special thanks to Jeremy J. Sturgeon, Esq., associate with Tonneman, Vuotto, Enis & White, LLC, for his assistance with this column.
Endnotes
[1]. Mary Pat Gallagher, Judicial Shortages Call for Desperate Measures in Bergen, Essex, 2014 New Jersey Law Journal, http://www.njlawjournal.com/id=1202666194028?
[1]0. Appellate Division Judges Harris, Grall, Parrillo and Sapp-Peterson; Bergen County Family Part Judge Donald Venezia, Mercer County Criminal Division Judge Fleming, Monmouth County Assignment Judge Lawson, Ocean County Civil Division Presiding Judge Millard and Ocean County Family Part Judge Franklin.
[1]1. Passaic County Civil Division Judge De Luccia Jr. retired in October
[1]2. Mercer County Civil Division Judge McManimon is set to retire Nov. 16; Michael Booth and Mary Pat Gallagher, Vacancies, Backlogs Growing, but Christie Not Sole Factor, 2014, New Jersey Law Journal, http://www.njlawjournal.com/id=1202666896380?
[1]3. New Jersey Judiciary Superior Court Caseload Reference Guide 2009-2013.
[1]4. Id.
[1]5. Id.
[1]6. Id.
[1]7. P.L. 2004, Chapter 157, an act creating the Uniform Mediation Act and supplementing Title 2A of the New Jersey Statutes.
[1]8. Anju D. Jessani, New Jersey Uniform Mediation Act and What it Means it Means to Divorcing Couples, http://www.divorcesource.com/ds/newjersey/new-jersey-uniform-mediation-act-and-what-it-means-to-divorcing-couples-4060.shtml.
[1]9. N.J. Stat. § 2A:23C-2 (2014).