Divorce arbitration is being used much more frequently by divorcing persons in lieu of protracted and fragmented court proceedings. As a certified family law arbitrator, I can vouch for the advantages to those who decide to arbitrate instead of litigate their cases. Recently, I posted an article concerning the “nuts and bolts” of divorce arbitration. This follow-up article is intended to provide a brief update based on a significant addition to the New Jersey Rules of Court, which now specifically reference the availability of divorce arbitration.

Under the new Rules, effective September 2015, divorce cases can be sent to arbitration and thereby removed from the court’s schedule for up to twelve months. Such “official” recognition of divorce arbitration is a testament to the reality of overburdened judges, clogged court calendars and piecemeal trial days. As a result, there is no doubt that an increasing number of divorce cases will be arbitrated moving forward.

If you are considering divorce arbitration, the first step is to discuss it with a family law attorney who can recommend an arbitrator who has been certified by the American Academy of Matrimonial Lawyers and is a member of the New Jersey Divorce Arbitrators Association.

This article is about one of the most interesting and effective means of resolving contested divorce cases without resorting to traditional litigation. Divorce arbitration occupies a unique position in the growing field of alternate dispute resolution. Let’s start by stating what it is not. It is not mediation where divorcing parties meet with a trained person who will hopefully assist them in achieving a settlement through a process of discussion, negotiation and compromise. Quite simply, some cases call for more than mediation can provide, especially if the parties are less than trustful of each other and a more firm, formal approach is appropriate. So what is divorce arbitration?

In divorce arbitration, the parties select an impartial third party to decide the issues in their case in the same manner as a judge. If the parties have lawyers, the selection will be guided by their advice based on the experience, reputation and integrity of the potential arbitrator, who has likely received specialized training and been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers (AAML). Each party presents their case at the arbitrator’s office, or other convenient location, in a more efficient and private manner than would occur in a courtroom. The case proceeds as it would in court with each party testifying under oath and presenting evidence, the admissibility of which may either mirror strict evidence rules or be more relaxed, so long as everyone agrees. A record of the proceedings is kept, sometimes by a live reporter and other times electronically, for future reference. Either party can call or subpoena witness to testify. Most importantly, at the conclusion of the hearing, the arbitrator issues his or her decision which, except for very limited legal reasons or if the parties agree otherwise in advance, is binding. The award is then be confirmed by the court granting the actual divorce.

Divorce arbitration can deal with all issues arising out of a marital or civil union dissolution, including custody, parenting time, alimony, child support, division of marital assets/liabilities and other issues. It is also well-suited to post-divorce settings such as parental relocation and change-in-circumstances cases. Given the significant backlog which courts are facing, the benefits of privacy and the issuance of a timely decision, divorce arbitration is here to stay.

Stark & Stark Shareholder, John S. Eory, Esq., Co-Chair of the firm’s Family Law Group, has been certified as a family law arbitrator by the American Academy of Matrimonial Lawyers (AAML). “Arbitration is a great courtroom alternative for those litigants who are unable to resolve their cases in mediation” says Lynn P. Burleson, former chair of the Arbitration Committee of the AAML. “It provides litigants with an opportunity for an expedited hearing before an arbitrator who has substantial expertise in matrimonial law and who is willing to set aside the time necessary to hear the evidence and to decide the disputed issues of the case. For a number of reasons and to an increasing degree, that opportunity is not available to litigants in the state trial courts.” (Source) Mr. Eory concentrates his practice on divorce, custody, domestic violence and other family law matters. In 2009, he was selected by the Mercer County Bar Association and the New Jersey Commission on Professionalism in the Law as the “Professional Lawyer of the Year.” He is also a fellow of the American Academy of Matrimonial Lawyers (AAML) and he has received Certificates of Achievement from the AAML and the Superior Court of New Jersey. Mr. Eory is a member of the Family Law Executive Committee of the New Jersey State Bar Association. He is also a lecturer for the New Jersey Institute for Continuing Legal Education and the New Jersey Association for Justice and has appeared as a speaker on television and radio with regard to family law topics.

Arbitration agreements seem to permeate our society, though they often go unnoticed. Traditionally located in what is colloquially referred to as the “fine print,” arbitration clauses in contracts, or in use agreement or terms and conditions, can have a tremendous impact on a party’s right to bring an action before a court of competent jurisdiction. Without understanding the fine print, a party may unknowingly waive its right to a trial by jury and may be left to litigate before an arbitrator, which can be an individual or a panel, in a closed proceeding with a very narrow and difficult right to appeal the decision.

A preference for arbitration will vary and will usually fall to a party’s relative interests. For some, an enforceable arbitration agreement may be helpful, as it presents and expedited process and a non-public forum for dispute resolution. For others, this language may be harmful, as the costs of arbitration can be extremely burdensome relative to traditional court costs. The important thing is to understand what is included in the agreement and whether the language is effective in accomplishing that understanding.

Continue Reading Read the Fine Print. Is My Arbitration Clause Enforceable?