The Arbitration process is an appropriate dispute resolution process in instances where:

Arbitration proceedings are similar to trial at the Court house. Testimony is taken in the presence of the parties and counsel. Documents are offered into Evidence. At the conclusion of the Arbitration proceedings, the Arbitrator prepares an Arbitration Award.

The Arbitrator is empowered by the parties to resolve their dispute, in the “Referral to Arbitration” that authorizes and limits the power of the Arbitrator. The Arbitrator may be limited to just deciding one of the key issues in the case.

As example, the Arbitrator’s charge may be limited to the issue of whether the Marital home should be sold now, or maintained for several years until one or more of the children graduate from High School? Testimony relevant to this issue may include: the ages and scholastic abilities of the children; special needs of the children; the cost of maintaining the marital home over several years or whether a smaller home is equally suitable; the savings if any to be achieved by selling and obtaining a less expensive residence; the anticipated change in the value of the home over the next several years; the income and other assets of the parties; the simple arithmetic demonstrating whether there is a current ability to continuing carrying this expense - is the home affordable post-divorce; the fairness to the non-resident spouse of withholding their share of the Net equity for years; whether the value of the home should be fixed, and a “Gemignani” Mortgage prepared to protect the non-resident owner’s interest in the home.

Once a decision is rendered in the form of an Arbitration Award, the case then transfers back to the Trial Court to determine whether the Award will be subject to approval, modification, or vacation by the Court. The Court’s power is limited by the referral to Arbitration as well, with the parties having the power in the referral to arbitration, that the Award will not be subject to scrutiny on the merits by the Trial Court, but only reversible in the event of a limited set of circumstances. There are several applicable statutes in this State relevant to Arbitration proceedings and rules governing such proceedings, as well as a number of applicable cases, and Court Rules.

Implementation: Arbitration is now far more accepted than in 1984 when the New Jersey Supreme Court approved this form of ADR to resolve family disputes. Faherty v. Faherty, 97 NJ 99 (1984). In 1989 at a cost of $16,000 this law firm created a dedicated courtroom large enough to accommodate an Arbitration Panel of five persons, counsel tables for the parties and their attorneys, with additional seating for interested third parties. This facility was offered to members of the family bar and their clients at no cost - all with the intent of moving the family law practice towards greater acceptance of Arbitration.

Over twenty years have now past since the Faherty decision, and Arbitration has found increasing acceptance by the family bar and their clients, often with the clients leading the way to utilize this ADR approach. In 2005 August Landi became affiliated as an Arbitrator with two retired Judges of the Superior Court of New Jersey who are available to serve as Arbitrators in Family Law cases.

"A D R" C O N C L U S I O N

The dispute resolution selected, and the choice of attorneys, should not be blindly entered into or determined without consideration. Often when marriages are no longer viaable, people seeking legal counsel abdicate the responsibility they owe to themselves to craft a dispute resolution process that works for them. Paying a retainer and then leaving life changing decisions to the experts generally is not the best way to proceed. Funding protracted litigation guarantees legal warfare. Divorce litigation is not family friendly and should generally be avoided. Judges of the Family Court say as much every day that they preside over an ESP calendar.

The attorney - client relationship works best when there is a collaborative process with the client understanding the approach being taken to resolve their case. The more you know about your case, the more likely your acceptance of the result at the conclusion.

To recap: If financial issues are straight-forward, and child-related issues pose no difficulties, then to select two attorneys who will engage in wide-ranging discovery leading to a contested divorce trial is normally counter-productive in the extreme.

1] The "primary attorney" model: One attorney prepares the court documents and drafts the Agreement that will form the road-map for the future and be introduced at Court with the terms that settles the case. The second attorney’s role is limited to reviewing and “tweaking” the working draft of the agreement; making suggested changes as required, and counseling their client as to the advisability of having sufficient financial disclosure so as to make a knowing decision. Once agreement is reached, the primary attorney follows the case through to completion and appears at Court with only the client they represent.

2] The “two attorney” conciliation approach. The parties select two attorneys who can work together in a collaborative way to obtain the necessary information to resolve the case; and at a four way conference the parties work together to meet their differing concerns and settle their case. Out of these negotiations comes a Family and Property Settlement Agreement. The Court is then informed the case is “uncontested”, and the “uncontested trial” takes place several weeks thereafter, with the Court’s role limited to assuring that the parties have knowingly and voluntarily entered into the Agreement and regard the agreement as fair and equitable. If children are under age 18, the Court also checks to determine if the parties’ agreement follows the “ New Jersey Child Support Guidelines”. If the amount of child support “deviates from the Guidelines”, the Court asks why - since the Court remains in a protective role for children pursuant to its parens patriae jurisdiction. If Alimony is being waived, the Court seeks to determine if this is a permanent waiver. If Alimony is being paid the Court seeks to determine whether the marital “lifestyle” is set out in the agreement, or whether the parties wish to waive disclosure as to this issue.

3] Mediation: Where marital partners can work closely together to fashion a fair and equitable agreement, they can choose Mediation, subject to review by attorneys of their choosing. Out of this process will come a Family and Property Settlement Agreement, suitable for filing with the Court at the time the Court grants an Uncontested divorce.

[NOTE: However arrived at, once a Family and Property Settlement Agreement is reached settling all the issues that must be resolved before a divorce can be granted, the parties may choose NOT to file for a divorce for months or years thereafter - they can simply live within the terms of their formal Agreement; and ultimate when one or both decide to proceed to a divorce, the divorce judgment can incorporate the Agreement as a Court Order.]

[Misconception 1: “Why have an Agreement. When we file for divorce, we will have to start all over again.” Not so. Some people on first seeking legal counsel believe that the Agreement is some how temporary, and that when either party files for a divorce, negotiations must start all over again, with the Court making a final determination on the issues - Not so.]

[Misconception 2: “ It makes no sense to have an Agreement, my spouse can not be trusted to keep to his word or promise. Anyway, I do not want an Agreement, I want a trial so I can end up with a Court Order.” Not so. The Agreement once signed and filed with the Court is a Court order, has the same power and majesty as a decision by the Court after a twenty day trial. So financially and emotionally it generally makes sense to reach agreement early.]

4] Arbitration: Where disputes are contentious, the parties and counsel should consider Arbitration as the preferred Alternate Dispute Resolution process. The parties have the power to select the Arbitrator, who may be an expert in their field. They can select more than one expert to serve as an Arbitration Panel. If child issues and high end business valuation issues are involved thought can be given to having a panel composed of an attorney, a forensic accountant, and a forensic Psychologist. The issues to be decided are controlled by the Referral to Arbitration. The Arbitrator is not faced with a crushing load of Arbitration cases on the docket. The finality of the Arbitration Award can be tailored. The parties may elect to have no review by a Superior Court Judge, a limited review, or a full review through the traditional Appellate process.

While considering Alternate Dispute Resolution approaches will at first blush appear to be a daunting effort, taking the “wrong route” at the initial stage of a family dispute, can result in years of litigation to no good end. So it is worth the effort to consider the alternatives.

Contested Divorce Trials: As a general rule the parties and counsel should never back themselves into a contested divorce trial - far better to select an experienced family law attorney to serve as an Arbitrator. The Trial Judge’s time is constrained by the finite number of hours the Court has available each month to hear contested cases. If necessary Arbitrator’s can pick several days in a row to hear the cases. The Arbitrator can limit testimony and document submission as to what is required to fairly and equitably conclude the case. Judges often feel constrained to allow parties and counsel to present endless and often unnecessary information leading to trials gone wrong that take on a life of their own carrying over for months on end.

Ultimately your attorney is your agent. Your attorney takes directions from you. You are not told what to do by your attorney, who can only advise. If you have read this far, you understand the importance of considering alternative ways to resolve your case through [ADR] before resorting to the default position of letting litigation proceed in the traditional way. For those not heeding these suggestions, expect to see a glazed look come over your friends at dinner parties after the first two or three years when you are recounting the latest skirmish in your on-going trial litigation.

CHILD CUSTODY

In addition to the end of the marital relationship, DADs often express uncertainty and concern that they will be isolated and cut off from their children. MOMs fear that a custody “war” will start, and that they will lose their children. Given the vulnerabilities on both sides, custody battles sometimes are motivated by the intent of one parent to hurt the other. Both parents express love for their children and power up a court dispute that is harmful to children and to co-parenting relations. In most custody cases both parents will continue to be with the children post-divorce. The primary issue may be about the shared amount of parenting time that each parent will have with the children.

During the school year there are approximately eight waking hours for the “resident” parent to be with their children on school days - a total of thirty-four hours. Typically the “non-resident” parent is with the children on Friday after work until Sunday evening - a total of twenty-seven hours. Trade-offs are granted in recognition that it would be unfair for one parent to have each and every weekend, because this is the “fun-time” to be with the children. The non-resident parent expresses a need to help children with home work and be involved in the educational experience. The resident parent will argue that this will be “disruptive” to the children, and result in a loss of continuity for grammar school children who have “projects” worked on over several days. Homework and books get misplaced - and the projects do not get done. The non-resident parent asks for over-nights with the children once or twice per week during the school year, because it is hectic to pick up the children after work, cook, do homework, and return the children to the resident parent by bedtime. With good will on both sides, parents get through these typical difficulties in a way that works best for children. However when hurt and anger power up legal conflict, the children can get lost in the process.

Contact the Law Offices of August J. Landi to learn more about divorce arbitration.