Arbitration is a relatively new concept in divorce law in New Jersey. Born out of the frustration with the limitations and delays of the traditional court system, arbitration is being used more and more as a way for litigants to resolve divorce issues outside the courtroom.

A major advantage to the parties in arbitration is that the parties can select their own arbitrator, which they cannot do in the court system. 

Arbitration also offers flexibility to spouses to craft the terms of their proceeding. In the arbitration order, the parties themselves set forth the details and scope of the arbitration, like what issues the arbitrator is going to decide, hearing dates, evidence to be submitted.

Parties must fully understand, however, that arbitration (as a general statement) under the New Jersey statute is binding. Generally, there are only narrow circumstances in which the parties can ask a court to vacate an arbitration award, i.e., fraud, corruption, typos, deciding a matter not submitted. A mistake of law or a mistake of fact generally is not a basis for a court to overturn the arbitrator’s decision. 

For spouses that may not want to wait for a trial date in the family law courts, which could take months or years, arbitration is a possible way to avoid such delays. Litigants must weigh the availability of the arbitrator, the complexity of their divorce issues, preparation time and even their own work schedules to determine if arbitration would be a more time effective alternative than through the court system.

Arbitration is also used when parties are concerned that, given the circumstances of their marital finances, they may be exposed to tax liabilities if the matter is tried in the court system. They may prefer to address sensitive financial aspects privately, using arbitration.

Arbitration may be used to decide family matters such as:

• Alimony

• Child support

• Equitable distribution

• Schooling expenses

• Attorneys’ fees

• Tax aspects of the divorce

• Child support

• Child custody and parenting time

Child support awards are reviewable by a trial judge if it is challenged on the grounds that it does not provide adequate protection of the child. 

Child custody and parenting time arbitration awards will be enforceable unless the decision is contested on the ground that it threatens harm to the child. In this instance, the courts can only evaluate whether a threat of harm exists under the following conditions: 1) at arbitration all documen­tary evidence must be kept, and 2) all testimony shall be recorded verbatim, and 3) the arbitra­tor shall state in writing or otherwise record his or her findings of fact and con­clusions of law with a focus on the best-interests standard. In other words, an arbitration award involving child custody and parenting time issues that fails to use these three procedures risks being overturned.

There are distinct advantages and serious disadvantages to submitting a divorce matter to arbitration. Arbitration is a double-edged sword and it is important that your attorney be knowledgeable about the rights and protections a spouse trades off for flexibility in an arbitration setting as compared with those available in the family courts.

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Matrimonial Early Settlement Panel (MESP)

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The MESP is available as part of the Family court process, and its purpose is to encourage settlement of all issues involved in a divorce prior to a trial. 

With MESP, selected experienced non-biased family law attorneys take turns as panelists to hear divorce cases. Each spouse’s lawyer appears before a MESP panelist and presents all the issues. The panelist will review a submitted document before the hearing from the parties outlining their issues. Panelists then make recommendations as to how they believe the issues should be resolved. If the parties agree with the findings, they can proceed to court to have the divorce finalized. Otherwise, the parties proceed to trial.

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Economic Mediation

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Economic mediation is also available as part of the New Jersey Family law court system. This program focuses on the economic issues of a divorce - equitable distribution of marital property and support. If the case is not settled after the Matrimonial Early Settlement Panel (MESP) is held, economic mediation is recommended. Mediation is recommended where the parties are amicable and open to third party guidance for a hopefully fast and non-confrontational resolution. It is important that when selecting a mediator, parties and their lawyers choose someone comfortable with family financial matters and familiar with how the New Jersey courts, and even specific judges, decide issues of alimony, child support, and division of assets. If parties mediate, they submit their position papers to the mediator, the proceedings are confidential, and they can create their own settlement agreement. In most cases, mediation is a time saving and less costly alternative to a full blown divorce trial. Mediators in each county are attorneys who focus substantially on family law and other experienced professionals in the financial or mental health fields, and must have completed 40 hours of training. The court rules require that the mediator contributes the first two hours, including preparation time, at no cost to the parties.

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Collaborative Divorce

In September 2014, New Jersey enacted the New Jersey Family Collaborative Law Act in an effort to provide uniform practices in the practice of collaborative divorce. “Collaborative law” is an alternative to the traditional litigation model of divorce. Under the principals of collaborative law, the clients each hire an independent attorney to represent them, however, all parties agree that they will resolve all issues arising from the divorce matter without court intervention. If that becomes impossible to achieve, each party must find new counsel prior to proceeding with litigation. Some people believe that this model promotes resolution outside of court and keeps the costs of the dispute down. Others find that the model becomes just as expensive when adding in mental health professionals and financial advisers to assist with the collaborative process. It is important before entering into any alternative dispute resolution process, that the client has sought independent legal advice and understands both the pros and cons of entering into a collaborative divorce arrangement or any other mediation type setting.