During the past decade divorce lawyers have witnessed the steady growth of "Alternate Dispute Resolution" (ADR) techniques such as mediation and binding arbitration of matrimonial issues. While ADR may be a viable option to a judicial decision, a recent case demonstrates the limits of binding arbitration in the divorce context.

On June 16 a New Jersey appeals court ruled that a divorcing couple could not, as a matter of law, bargain away a court’s obligation to review the best interests of their children by agreeing to be bound by an arbitrator’s decision respecting child support and, by implication, custody or parenting time.

The key word is "binding". In the above case, the parties had initially agreed that the arbitrator’s decision concerning child support would be final and not subject to judicial review or appeal. The appellate court disagreed, stating that courts have a "non-delegable, special supervisory function" when it comes to children which cannot be bargained away and voided the parties’ agreement.

The point is that persons seeking to resolve their matrimonial differences through ADR need to be aware of what can and cannot be accomplished by seeking advice from skilled and independent attorneys before and during the process.