Fox Rothschild LLP

A lot of people believe that COVID has caused divorce cases to drag and the legal system to be ground to a halt – or at least, to lag behind.  While that is certainly the case in some counties and more particularly, with some Judges, for the most part, the courts are acting efficiently, and in some respects more efficiently, than in the past.  In fact, a few months ago, I wrote a post on this blog entitled NJ Divorce Court State of Play After 6 Months of Covid 19 Restrictions.  If anything, in the almost since months since that time, people have gotten even more used to Zoom motions, meetings, Case Management Conferences, mediations and even trials.

That said, last week I read that one in six judicial seats (approx. 17%) are vacant. In some counties, those number seem worse because when a trial judge gets moved up to the Appellate Division, it is my understanding that that judge counts toward that county’s roster and not a vacancy.  Either way, the number of vacancies has to contribute to backlog and delay.

The system has mandatory alternative dispute resolution (ADR) at various points.  Early on in the case, there is mandatory custody and parenting time mediation, with courthouse staff, and usually without attorneys.  That is not to say that attorneys should not be involved to prepare their client for the process.  That said, they are generally not part of the actual mediation.  For finances, there is also mandatory Early Settlement Panels (ESP or MESP) which is a process where the matter is submitted to a panel of 2 or 3 experienced matrimonial attorneys who are donating their time to make recommendations as to how the financial aspects of case can settle.  If the matter doesn’t settle at ESP, then there is mandatory economic mediation where the mediators typically give 2 free hours (one of which is preparation) to help assist in facilitating a negotiated agreement.  If cases still aren’t settled, many judges schedule Intensive Settlement Conferences (ISC) either with themselves or another matrimonial judge (some judges or parties don’t want the ultimate trier of fact knowing their settlement positions).

Now there is no reason that parties cannot agree to begin the mediation process before it is “mandatory.”  Parties are free to mediate whenever they want though it usually makes sense to do so once each side has enough information so that they feel comfortable that they know enough about the income, assets, etc. to make a knowing and reasoned decision.  Often, in complicated cases, people even seek to bypass ESP completely and go right to mediation.  Some judges/counties allow this – other do not or cannot.

There are some cases that simply cannot settle, either because of the difficulty of the issues and/or the difficulty of one or both parties.  At that point, people can wait for a trial date.  That said, I have heard some judges say that they are scheduling now for 2022.  I have one matter that I have been waiting for a trial date to be assigned since the summer of 2019 – pre-Covid.

If you don’t want to wait for a trial date but want the matter concluded, the parties can agree (they cannot be compelled) to go to binding arbitration, with or without a right of appeal.  We have talked about arbitration a lot on this blog, and in a lot of ways, it can be very much like a trial, with testimony of witnesses, presentation of evidence, strict adherence (or less so if you agree) to the Rules of Evidence, a court reporter taking a verbatim records, etc.  And when it’s done, its done.  Even people who want a right of appeal can build in an appellate arbitration process into their arbitration agreement which will be light years faster than trying a case in the Family Part and then appealing it to the Appellate Division.

Personally, I have arbitrated many cases and last summer, completed the AAML Arbitration course allowing me to serve as an arbitrator.  Many in our group, myself included, have completed the 40 hour mediation training as well.  In this day an age, we are nimble enough to litigate, mediate and/or arbitrate cases, either representing a party or as the neutral.  Quite frankly, given the backlog and the shortage of judges, all of these tools should be considered to try to bring cases to conclusions.

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