ADR: NJ's Experience Shows Its Value to Family Law Practice

To trace the history in our example jurisdiction, we need to return to the 1970s. But first, let's define terms.

On one end of the spectrum of family law ADR is mediation, and on the other end is binding arbitration. In between is non-binding arbitration. Then, sort of off of the grid, but nonetheless a branch of mediation, is collaborative divorce.

“Mediation” is a “process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” N.J.S.A. 2A:23C-2. “Non-binding Arbitration” is a process by which each party and/or its counsel presents its case to a neutral third party, who then makes a recommendation for settlement of the issues presented. “Binding Arbitration” (or just “Arbitration”) is a process “by which each party and/or its counsel presents its case to a neutral third party, who then renders a specific award.” R. 1:40-2(a)(1). And, finally, “Collaborative Divorce” is a procedure intended to resolve the family law dispute without intervention by a tribunal provided that the individuals in the dispute sign a family collaborative law participation agreement and are represented by family collaborative lawyers. N.J.S.A. 2A:23D-3c.

Now, for the history. Like so many other areas of law, the evolution of ADR in New Jersey did not expand in a structured sort of way, but in a cumulative development. In the late 1970s, a process was started in Morris County called the “early settlement program” (ESP). It was to be (and continues in its original intent and current practice) a method of settlement of cases, outside of a judicial determination, whereby the parties and their attorneys met with a panel of well-qualified matrimonial lawyers (initially consisting of three members, but ultimately being reduced to two) who would hear the issues and positions of the parties, caucus between themselves and make a recommendation for settlement. If this sounds familiar, that's because it is: Morris County's ESP, the first institutionalized ADR in New Jersey, was something akin to non-binding arbitration.

The program was subsequently adopted in several other counties and was so successful that by the early 1980s, an ad-hoc committee of the New Jersey Supreme Court endorsed a proposal to have the Court adopt a rule recommending that each of New Jersey's 21 counties adopt such a program. (New Jersey is rather unique in that under the state constitution, the court adopts is own rules of governing the practice and procedure to be used in its system. It has several standing committees (usually comprised of judges, lawyers and court personnel) and such other ad-hoc committees as it may, from time to time, appoint to make recommendations for rule changes.) By the mid-1980s, pursuant to a recommendation by the Supreme Court Family Practice (standing) Committee, the court adopted a rule mandating that every county have such a program. It has been a huge success, and I dare say that the system of dispensing matrimonial justice would inevitably fall apart without it. (Anecdotally, and sadly, there is probably not a similar program throughout the rest of country.)

By the early 1990s, however, this was not enough. So the court went about making a series of changes that adopted mediation as a second method of ADR in matrimonial cases. Ultimately, the legislature in 2004 adopted the Uniform Mediation Act, N.J.S.A 2A:23C-1 et seq., and the court thereafter continued to fine-tune its rules on mediation, and in particular, mediation in matrimonial cases. Now, economic mediation is required in every unsettled matrimonial case. No result of any kind is mandated, but the parties are, nonetheless, required to participate in the process. The Administrative Office of the Courts (AOC) maintains a list of attorney-mediators who have completed specific training for this purpose. With the new cycle of rules effective Sept. 1, 2015, the court will even expand the program to cases involving domestic violence.

Arbitration of family law cases in New Jersey is, however, somewhat more complex. From the case law point of view, the New Jersey Supreme Court was essentially the first jurisdiction in the country to legitimize family law arbitration in its landmark decision of Faherty v. Faherty, 97 N.J. 99 (1984). That case encouraged the use of arbitration as a method of ADR as to economic issues in matrimonial cases. However, the case, while receiving notoriety throughout the country, was not at all well-received in its own state ' for arbitration did not catch on at all.

There are two statutes that now govern the arbitration process in all civil family law cases: 1) the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 et seq., adopted in 1987; and 2) the Uniform Arbitration Act (UA), N.J.S.A. 2A:23B-1 et seq., adopted in 2003. Arbitrations in matrimonial matters can take place under either of those legislative pronouncements. However, the process continued to enjoy only sporadic acceptance by attorneys and litigants ' particularly in what are known in New Jersey as
“Sheridan” cases ' Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990) ' in which a trial judge must report illegal conduct (such as tax evasion) of one or both of the parties to the appropriate authorities. (Most subscribe to the theory that an arbitrator is not so mandatorily required, thus accounting for some limited acceptance of this type of decision-making in these types of cases.)

It was not until the court's decision in Fawzy v. Fawzy, 199 N.J. 456 (2009), which extended Faherty to include (under specific parameters) custody and other child matters, that some interest in the arbitration process was generated by the court itself in its referral to its Family Practice Committee for the purpose of recommending to the court rules and procedures of arbitration in family matters and to devise forms of arbitration agreements. The Committee took that charge and, after much internal debate, made specific recommendations. However, those recommendations were hit with opposition not just from the matrimonial bar (acting, in part, in its own self-interests), but from civil arbitrators.

In response, the court did not adopt the rules and forms recommended by the Family Practice Committee but, instead, convened an ad-hoc committee named the Family Law Arbitration Committee (comprised of judges, matrimonial-arbitration attorneys and civil-arbitration attorneys), charging it with the responsibility of “messaging” the objections, and reporting to the court revised rules and forms without dissent. That effort resulted in recommendations to the court, which it adopted in July 2015, essentially without change.

Collaborative divorce has been, in part, a stepchild of family law ADR ' an afterthought whose time is quickly approaching. It requires such an earnest effort on the part of all concerned, that the attorneys agree to withdraw if the matter cannot collectively be settled, after which point the matter must be tried.

Conclusion

Early Settlement Panels and mediation are ADR methods that are now (and probably will remain) part of our culture in New Jersey family law practice. Acceptance of arbitration and the collaborative process ' both being absolutely voluntary ' remains elusive. Many attorneys are skeptical of the collaborative process, as it limits the scope of their participation. Similarly, many are dubious of arbitration, since it limits the right of appeal. (This latter fear is not well-founded. Consider, for instance, that cognizable appeal from a judicial determination will lie (for the most part) only if the trial judge has abused his or her discretion ' or, if you will, made a ruling in the outer fringes of the decision-making spectrum. If an arbitrator is chosen from the very experienced matrimonial lawyer or retired judge ranks, what are the chances that a decision will fall within those outer fringes? Isn't this fear of lack of appellate rights also obviated by a “reconsideration” procedure built into an arbitration agreement? And doesn't the ability to “choose” an arbitrator based on specific qualifications tailored to be concurrent with the fact pattern of the case override this concern?)

The lesson to be learned from the New Jersey experience is that adoption and acceptance of ADR in all of its forms is a long and arduous process, full of pitfalls, which requires us, as lawyers, to think outside of our parochial spheres in favor of the best interests of the litigating public.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is with of counsel with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ.