New Jersey Alternative Dispute Resolution - NJ CDR - Arbitration, mediation, negotiation

“Arbitration is the process in which a dispute is submitted to experienced and knowledgeable neutral attorneys or retired Superior Court judges to arguments, review evidence, and render a decision. It is less formal, less complex, and often concluded more quickly than court proceedings. The purpose of arbitration is to provide an informal process for resolving civil cases in an economic and expeditious manner.” Complementary Dispute Resolution In simple terms arbitration is where an impartial person will hear a dispute between the parties, and render a decision, which is called a reward. This can be binding sometimes meaning that it is not an appeal-able decision. Awards are usually final, and will be in writing by the arbitrator, or arbitrators.

The difference between mediation and arbitration is that mediation is a way that the disagreeing parties are assisted in reaching a decision by a mediator, where as in arbitration an arbitrator makes the decision for the disagreeing parties. “Mediation involves an impartial person assists the parties in reaching their own settlement. Mediation is an effective means because the mediator can help set ‘ground rules,’ and help to set an ‘agenda’ so that the parties have a road map to follow in order to settle their dispute that is acceptable to them without having a decision forced on them. This process can be used prior to arbitration to try to settle the dispute.” Definitions

In New Jersey the Supreme Court has termed, what I call Alternative Dispute Resolution, it as Complementary Dispute Resolution. The word ‘complements’ was used because it was thought that this process is actually complementary to the traditional trial process, not an alternative to the trial process. The Supreme Court of New Jersey has approved this process in all the vicinages in the state for use in “Civil, Family, Municipal, and Special Civil” part courts (it can also be found in some instances in the Criminal and General Equity courts too). Complementary Dispute Resolution Both mediation and arbitration are within this process New Jersey calls Complementary Dispute Resolution. Id. at CDR

The process for which a matter gets heard in New Jersey for arbitration is similar to what happens in a trial. The arbitration must take place within “60 days after the closing date of discovery.” ADR Rules Each side, or party, will have an opportunity to present their position, or case, to the impartial arbitrator about the dispute. Because the Federal Rules of Evidence (and State Rules) regarding objections, hearsay, and other court-room objections are not applied this process is not as formal as a trial; however, the arbitration process is just an effective, if not more effective than a trial in getting a dispute resolved. The arbitrator can apply a ‘reasoned decision,’ with explanation of how he or she came to the decision, or a ‘bare bones decision,’ without explanation. The arbitration process can be either binding (meaning the arbitrator’s decision is final, and is not appeal-able), or non-binding (which is more of an ‘advisory’ opinion, or otherwise known as an ‘award.’ The non-binding decision can only be made binding if the parties agree to the arbitrators decision/award. Binding arbitration is typically final, meaning once the arbitrator grants an award, the party who did not like the decision cannot later file a claim and bring this same dispute (action) to court. Process If the award is binding, a Trial De Novo will not be granted. RULE 4:21A.

The New Jersey Complementary Dispute Resolution Programs (CDR) where designed to create an easier way for litigants to resolve their disputes. One of the best aspects of the arbitration process is that is looks, and performs like a ‘mini-trial’ where the arbitrator functions like the judge. RULE 1:40. COMPLEMENTARY DISPUTE RESOLUTION PROGRAMS This is done without having to know, or use the Rules of Evidence because they do not apply in New Jersey arbitration hearings. ADR Rules page 9

Arbitrators in New Jersey must be an attorney with at least seven years of experience or a retired judge, typically a Superior Court judge. ADR page 10 The purpose of having such experienced legal professionals is to ensure that qualified, competent, and skilled professionals who specialize in the topic of law they will hear form litigants. Ibid. In order to become an arbitrator the person must submit an application and resume to the Civil Presiding Judge for consideration. Id. at 11 The arbitrator serves as both judge and jury so professionalism and impartiality are two key components that lend to the success of alternative dispute resolution.

The mediation process in New Jersey is driven, developed, and maintained by the New Jersey Court Supreme Court and the rules that drive it are in New Jersey Court Rules 1:40-4. The key in the mediation process is that the mediator does not decide the case, but only helps the parties resolve the dispute a being an impartial third party. “The New Jersey Supreme Court Committee on Complementary Dispute Resolution has instituted a pilot program for mediation for economic issues in family law cases in New Jersey” that will be of help to residents in family law legal disputes. http://www.judiciary.state.nj.us/family/mediation.pdf There is a high standard for qualifying as a mediator in this program, which have social worker as well as attorneys, and retired legal professionals. The one nice feature of this program is that all said in the mediation process stays in the mediation process, unless both parties to the issue consent. New Jersey Court Rule 1:40-4 (c).

The way to get your case in this mediation track is by referral, by the judge presiding over the case, court staff, or the parties that brought the case. The form is filled out then the presiding judge signs the form so the process can begin in the Family Law Pilot Program (CDR). http://www.judiciary.state.nj.us/family/mediation.pdf The Family Law mediation process is, in my opinion, a favorable alternative to that of a traditional divorce in New Jersey. In a traditional divorce setting the husband and wife are each represented by their own attorney, and a “Complaint for Divorce is filed in Superior Court.” Divorce--Litigation and the Mediation Alternative This process can be settled through the attorneys or it can go all the way to trial where a Judge will decide custody, visitation, support, and equitable distribution, and his decision is final. Id at 1. The bottom-line to this approach is that the couple do not have a say in who gets what, or what will happen, they only get to present evidence that will bolster what they ask for, but that final decision is ultimately belongs to the Judge. Ibid.

The mediation process in divorce is a way for couples to have a say in what they want to happen regarding custody, visitation, support, and distribution of marital property. Ibid. Because the couple is not bound by the Judge’s decision, or an arbitrator’s decision for that matter, the couple can best determine a workable, mutually agreeable solution to their divorce that satisfies both parties (resolves the conflict), without the added stress and expense associated with litigation and trial. Ibid. The mediator’s role in this process is to be a ‘neutral professional’ to help with the divorce process; the mediator will also help ‘define the issues’ and assist in looking at what options the couple may have. Ibid. The key is once an agreement has be reached the attorney’s for each party will draft an agreement which then can become binding once approved by the court. Ibid. The advantage that mediation brings (as compared to the traditional divorce) to the divorce process is control for the parties, a quicker resolution to the dispute, and a less expensive way to end what was once a marriage. Ibid.

When it comes to the mediators used by the courts of New Jersey the parties to the action can be assured it is not just general laypeople off the street who hear their case. The qualifications for mediators are dependent on what type of case or controversy they will hear. CDR NJ Mediators are categorized by the types of case that each will hear, and the qualifications to hear such a case varies, for example in family law where custody and parenting time are issues the mediators must have a graduate degree, or advanced certification in the ‘behavioral or social sciences’ which is required in combination with training in mediation. 1:40-12 (2) Mediators Qualifications Mediators are categorized in the following segments:

This requires training not only at the beginning to be approved by the Administrative Office of the Courts, but also a continued training, which consists of fours hours of training annually to cover the continuing education requirement. In order to satisfy this requirement the “continuing education requirement is required to cover at least one of the following:

The requirements for each division do vary but the result is the same, each mediator is required to receive training prior to being admitted, and have continuing education while handling cases in the state of New Jersey. The mediators have evaluations which are handled by the Administrative Office of the Courts to ensure that all mediators are up to speed and proficient in their particular field. RULE 1:40-12(d)

“The New Jersey Construction Lien Law (P.L. 1993, Chapter 318) ("Lien Law") provides that as a condition precedent to the filing of any lien arising under a residential construction contract, the lien claimant shall first file and serve a Notice of Unpaid Balance and Right to File Lien ("NUB/RFL"). Simultaneously with the service of the NUB/RFL, the lien claimant is also required to serve a demand for arbitration and fulfill all the requirements and procedures of the American Arbitration Association (AAA) to institute an expedited proceeding before a single arbitrator designated by the AAA, unless the parties have otherwise agreed in writing to an alternate dispute resolution mechanism. These arbitration rules and any amendment of them shall apply in the form obtaining at the time a demand for arbitration under the Lien Law is received by the AAA, except for any provision that may be inconsistent with applicable law.

All cases will be determined by the arbitrator by document submission only, unless a party makes a timely request for an oral hearing before the arbitrator and has paid any oral hearing surcharges.

Arbitration is initiated by the filing with the of two (2) copies of a Demand for Arbitration including two (2) copies of documentation in the form described below. The claimant shall simultaneously, by personal service or registered or certified mail-return receipt requested, postage prepaid, serve or mail a copy of the demand for arbitration, including attachments, to the last known business address or place of residence of the owner and, if any, of the contractor and the subcontractor, against whom the claim is asserted. The demand shall include the following in order to fulfill the filing requirements of the AAA to institute an expedited proceeding under the Lien Law:

(1) the appropriate filing fee ($175 for a document submission case; $425 for an oral hearing case), to be paid to the AAA;

(3) the name and last known business address or place of residence of the property owner and, if any, of the contractor and the subcontractor, against whom the claim is asserted, and telephone numbers, if known;

(4) the names, addresses and telephone numbers of representatives of the parties, if known;

(5) a statement of whether the claimant requests an oral hearing with the arbitrator, and, also, a list of the names and business affiliations of witnesses the claimant may call at the oral hearing;

(6) if the claimant does not request an oral hearing, claimant shall attach two (2) copies of all documents that claimant wishes to submit to the arbitrator for determination of the claim.

The AAA shall not be required to proceed with administration of the claim if the AAA determines that the demand does not fulfill the filing requirements which include, among others:

(a) providing the AAA with the exact number of required copies; and (b) the correct filing fee; as both outlined above and as referred to throughout these Rules.

Upon receipt of a demand for arbitration, the AAA shall appoint a single arbitrator from its panel of persons knowledgeable in construction. Any person appointed as arbitrator shall disclose to the AAA any circumstance likely to affect impartiality, or any past or present relationship with the parties or their representatives. The AAA shall determine whether the arbitrator should be disqualified and shall inform the parties of its decision, which shall be conclusive. The AAA is authorized to remove the arbitrator, and to appoint another arbitrator if a vacancy occurs for any reason.

In accordance with the Lien Law, any contractor, subcontractor or supplier whose interests are affected by the filing of a NUB/RFL shall be permitted to join in the arbitration; but the arbitrator shall not determine the rights or obligations of any such parties except to the extent those rights or obligations are affected by the NUB/RFL.

After filing of the arbitration, the demand may only be amended with written consent of all parties, or with the consent of the arbitrator.

The AAA will acknowledge to the parties receipt of the demand for arbitration. Within seven (7) calendar days of notice from the AAA that it is proceeding with administration of the claim, a respondent against whom a claim is asserted:

(a) may file an answer in writing by serving two (2) copies of same on the AAA and a copy on each party;

(b) may file a setoff or counterclaim, by serving same on the AAA and on all other parties in writing, accompanied by a filing of $175 to be paid to the AAA;

(c) may, if claimant did not request an oral hearing, make a request for an oral hearing by serving same on the AAA and on all other parties in writing, and include the names and business affiliations of witnesses the respondent may call at the oral hearing, accompanied by an oral hearing surcharge of $250, to be paid to the AAA;

(d) shall, if an oral hearing is not requested by any party, serve two copies on the AAA and one copy on all other parties of all documents that respondent wishes to submit to the arbitrator.

Submissions pursuant to this Section should be received by the AAA within seven (7) calendar days of the date of the AAA's written notice.

Claimant may submit a written reply by (a) serving two (2) copies on the AAA, which should be received by the AAA within three (3) calendar days of the date of the AAA's written notice, and (b) serving a copy on each party. If a respondent submits a setoff or counterclaim in a document submission case and respondent did not request an oral hearing, claimant's reply may include a request for an oral hearing, accompanied by an oral hearing surcharge of $250, to be paid to the AAA.

The parties may modify any period of time under these rules by mutual agreement. The AAA or the arbitrator for good cause may extend any period of time established by these rules, subject to any time limitations set forth in the Lien Law.

When an oral hearing is requested, the arbitrator shall fix the date and time of the hearing, which may be at any reasonable time on any day of the week in order to meet the time limitations of the Lien Law. The hearing will be held at the business offices of the arbitrator or such other place as the arbitrator may designate, which may include the business offices of one of the parties if such offices are available without cost to the other parties, or the property which is the subject of the claim.

Except for required filings under these rules, and as may be required by the Lien Law or determined by the arbitrator, there is no requirement that the parties exchange information prior to the hearing.

All persons who are parties to the arbitration, as well as representatives, are entitled to attend oral hearings. The arbitrator shall determine whether any other person may attend the hearing and shall have the power to require the exclusion of any witness, other than a parties during the testimony of any other witness.

Hearings may be postponed only if the arbitrator finds good cause. All requests for postponements shall be communicated to the arbitrator through the AAA.

There is no requirement that a stenographic record be made of the proceedings, but any party may make such arrangements at its own expense and shall notify the other parties of these arrangements in advance of the hearing.

The arbitration shall be conducted by the arbitrator in any manner which will permit full and expeditious presentation of the case by all parties. Generally, the oral hearing shall be completed within one day but the arbitrator may for good cause, schedule additional hearings. An arbitrator or attorney of record authorized by law may subpoena witnesses or documents. The arbitrator may require witnesses to testify under oath. The arbitrator shall be the judge of the relevancy, materiality and admissibility of the evidence offered, and conformity to legal rules of evidence shall not be necessary. Except when all parties otherwise agree in writing, there shall be no direct communications between a party and the arbitrator other than at the oral hearing, and during telephone conferences arranged by the AAA in which all parties are given the opportunity to participate.

The arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or participate or fails to obtain an adjournment. An award shall not be made solely on the default of a party. The arbitrator shall require the party who is present or participating to submit such evidence as the arbitrator may require for the making of an award.

Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state objections thereto in writing shall be deemed to have waived the right to object.

With the exception of the demand, which shall be served as set forth above, each party shall be deemed to have consented that any papers, notices or process necessary or proper for the continuation of an arbitration under these rules, and for any court action in connection therewith, may be served on such party by mail addressed to the party or its attorney at the last known address, or by personal service, in or outside the state where the arbitration is to be held, provided that reasonable opportunity to be heard with regard thereto has been granted to the party. The mailing requirement may be met by facsimile machine, telex, telegram, or other written forms of electronic communication. The parties shall also accept all notices from the AAA by telephone, including answering machine or service. In view of the time limitations established by the Lien Law for completing the arbitration, the parties are obligated, once having filed or having received notice of the demand for arbitration, to maintain contact with the AAA to stay apprised of the hearing or document submission schedule.

No judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party's right to arbitrate. Neither the AAA nor any arbitrator in a proceeding under these rules is a necessary party in judicial proceedings relating to the arbitration, and may not be named as a party thereto. Neither the AAA nor any arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these rules.

The arbitrator shall interpret and apply these rules insofar as they relate to the arbitrator's powers and duties. All other rules shall be interpreted and applied by the AAA, as administrator.

The parties will be charged an additional $250 per diem for arbitrator compensation, payable in equal shares, should the hearing be continued past the first day. $50 is payable by any party causing a postponement of a scheduled oral hearing. The parties will be charged, payable in equal shares, for the cost of any room rental or other ancillary charges for an oral hearing and required travel and other expenses of the arbitrator. All fees are subject to allocation among the parties by the arbitrator in accordance with the Lien Law. The AAA or the arbitrator is authorized to withhold release of the arbitrator's determination pending payment of all administrative fees and arbitrator compensation.

(a) if the is notified before the arbitrator commences review of any submissions of the parties in a document submission case that a claim has been settled or withdrawn, the apportioned arbitrator compensation listed in the Fee Schedule will be refunded;

(b) if the AAA is notified at least 48 hours before the scheduled time and date of an oral hearing that a claim has been settled or withdrawn, the apportioned arbitrator compensation listed in the Fee Schedule will be refunded.” Ibid.

	Claimant Apportioned to: AAA Arbitrator		Respondent(s) Apportioned to: AAA Arbitrator
Demand/Document Submission	$175	($100) ($75)
Demand/Oral Hearing	$425	($175) ($250)
Setoff or Counterclaim			$175	($100) ($75)
Oral Hearing Surcharge			$250*	($75) ($175)

“*This is payable by respondent if respondent requests an oral hearing after claimant filed the demand as a document submission case.” Id. at AAA

In New Jersey where personal injury actions are arbitrated under New Jersey Court Rule 4:21A if the party that brought the claim does not appear at the arbitration hearing that party’s pleading is dismissed, and if the party who is defending fails to appear at the hearing the arbitrator will continue with the hearing, and the “non-appearing party will waive their right to a trial De Novo.” 4:21A-4(f) The party will be responsible for litigation expenses, counsel fees, and other services that are a result of the non-appearance.

The award to a party will come in writing from the court as written by the arbitrator with ten days after the hearing. Providing both parties did show up at the hearing, a right to a trial de Novo will exist for the party who wants the process to continue. RULE 4:21A Arbitration Award Awards can be modified pursuant to N.J. Stat. § 2A:24-9 (2004) and vacated pursuant to New Jersey Statute § 2A:24-8, which are discussed here in the New Jersey Statutory and Court Rules of Authority for Complementary Dispute Resolution portion of this paper. Id. at 4:21A

In arbitration matters, in certain civil actions such as “automobile negligence, personal injury (except for professional malpractice), and other actions that are on a book account or instrument of obligation” can be submitted to this area after the arbitration process. RULE 4:21A. De Novo A trial De Novo occurs when a party is dissatisfied with the results from a non-binding arbitration. The party will demand to go to trial, and furnish the court a check for $200.00, which pays the arbitrators fee, which is not refundable. ADR page 32 The key to this demand is force the parties to settle in the arbitration hearing, or accept the arbitrator’s decision prior to a trial De Novo. In the De Novo setting if the party who brought the suit receives a verdict of less than 20% of the original award that party pays the costs, which included attorney’s fees, and other reasonable costs. There is incentive to avoid a Trial De Novo. If at the original arbitration you did not receive a monetary award, and you now seek a Trial de Novo, and at the Trial De Novo you are awarded more than $250.00 you are not responsible for the attorney fees, and other reasonable costs. RULE 4:21A De Novo The one key aspect of forwarding arbitration to the Trial De Novo stage is that the arbitrator’s decision is not appeal-able. Rule 4:21A-6 (a) Appeal-ability. The decision and award of the arbitrator shall not be subject to appeal. RULE 4:21A. ARBITRATION OF CERTAIN PERSONAL INJURY ACTIONS

What is an arbitrator’s compensation? The arbitrator’s first three hours are service are free to the parties, otherwise known as pro bono. Fees are set by the mediator, and the parties equally share the fees and expenses, with a provision in the statute that says ‘failure to pay the mediator may result in an order by the court to pay and imposing appropriate sanctions. Typically fees, as of November 2004, range form “$250.00 to $350.00 per day” (mostly $250.00 per day) for the attorneys who serve as the mediators in New Jersey. Ronald Cappuccio, esquire Alternative Dispute Resolution Ronald Cappuccio Esquire This statute applies to all New Jersey mediators except in the Special Civil Part.

The arbitration of Civil actions pursuant to New Jersey Court Rule 4:21 A-2(d)(1)(2), for the compensation of arbitrators which states:

“(1) Designated Arbitrators. An arbitrator designated by the civil division manager, including a retired judge not on recall, shall be paid a per diem fee of $350.

(2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $70 per hour but not exceeding a maximum of $350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $70 per hour but not exceeding $350 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees.” RULE 4:21A-(2)(a)

Binding Arbitration in New Jersey can be agreement, between parties, or statutory dependent. A private employer may have an employment clause where if there is a termination, salary, or benefit dispute that binding arbitration is the remedy. In New Jersey the legislature has passed laws for binding arbitration of state employees in certain employment aspects. http://www.judiciary.state.nj.us/legis/admin/2003c119.pdf Binding arbitration in the employment realm is effective and enforceable in New Jersey. Id. at Judiciary

New Jersey Statutory and Court Rules of Authority for Complementary Dispute Resolution

The statutory authority for Complementary Dispute Resolution resides in New Jersey Court Rules 1969 R. 1:40-1 through 1:40-12 (2004). Lexis Cite This statute gives Municipal and Superior Court judges the power to require the disputing parties to attend a mediation session after the filing of a complaint in order to best resolve the dispute without the court’s intervention at trial. NJ Court Rule1:40-4 (a). The statute does give the disputing parties some leverage in that either party can terminate the mediation if they can prove:

a. “there is an imbalance of power between the parties that the mediator cannot overcome

a. there is a failure of communication that seriously impedes effective discussion,

c. the mediator believes continued mediation is inappropriate or inadvisable for any reason.” 1:40-4 (f)(1), and (2) Lexis Cite

In the mediation of Civil, Probate, and general equity matters that mediator will not only furnish a written a Mediation Statement. The mediator shall fix a date not to exceed 30 days after the entry of the mediation referral order for the exchange by the parties and service upon the mediator of a brief statement of facts and proposals for settlement not exceeding ten pages. All documents prepared for mediation shall be confidential and subject to Rule 1:40-4(c). 1:40-6 (e).

One key aspect in the statute is the ‘relaxation of rules’ for the mediator to best serve the litigants. As I had mentioned earlier, formal rules of evidence are relaxed during this process so a resolution can be found. Court rule 1:40-10 says exactly that, it is titles “Relaxation of Court Rules and Program Guidelines. These rules and any program guidelines may be relaxed or modified by the court in its discretion if it determines that injustice or inequity would otherwise result. Factors to be considered in making that determination include but are not limited to:

(3) the previous participation by the parties in a CDR program involving the same issue, and (4) any factor warranting termination of the program pursuant to Rule 1:40-4(f).” New Jersey Court Rules, 1969 R. 1:40-10

The final determination of the mediator is required, provided the parties agree fully or partially. The mediator will report to the court that an agreement has been reached and formal trial proceedings are then put on hold, or ‘stayed.’ 1:40-4 (g).

            The award of an arbitrator can be vacated by New Jersey Statute § 2A:24-8 which states that ‘the court shall vacate the award in any of the following cases:

                                    a. “Where the award was procured by corruption, fraud or undue                                                   means;
                                    b. Where there was either evident partiality or corruption in the                                                       arbitrators, or any thereof;
                                    c. Where the arbitrators were guilty of misconduct in refusing                                             to postpone the hearing, upon sufficient cause being shown                                                     therefore, or in refusing to hear evidence, pertinent and                                                                  material to the controversy, or of any other misbehaviors                                                      prejudicial to the rights of any party;
                                    d. Where the arbitrators exceeded or so imperfectly executed                                            their powers that a mutual, final and definite award upon                                                the subject matter submitted was not made.
When an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” N.J. Stat. 2A:24-8

An award may be modified or corrected by the court under the following condition as stated in New Jersey Statute § 2A:24-9 (2004):

                                    a. “Where there was an evident miscalculation of figures or an                                             evident mistake in the description of a person, thing or property                                            referred to therein;
                                    b. Where the arbitrators awarded upon a matter not submitted to                                                    them unless it affects the merit of the decision upon the matter                                              submitted; and
                                    c. Where the award is imperfect in a matter of form not affecting                                                     the merits of the controversy.
The court shall modify and correct the award, to affect the intent thereof and promote justice between the parties.” N.J. Stat. 2A:24-9

For empowering alternative dispute resolution processes in New Jersey for Tort Actions the statute that enables this process in N.J. Stat. § 2A:53A-35 (2004). Tort Statute ADR. For certain Civil Actions the statute that controls is Rule 4:21A-1 to A-8. ADR page A7

United States

District Court of New Jersey Statutory Authority for Alternative Dispute Resolution

In the Federal Court system this is known as ‘Arbitration Program’ for civil matters. The overseer of the arbitration is still the district court judge or magistrate who has the control over the case, but the arbitration matters are controlled a ‘compliance judge for arbitration.” USDC DNJ Appx. M In the district court an award in the arbitration process may not exceed $150,000.00. The court encourages parties to seek a form of alternative dispute resolution but does not have the statutory authority to compel the parties to this forum pursuant to rule (X) in this statute which states:

“After enactment of the Civil Justice Reform Act of 1990, then - General Rule 47 (now Local Civil Rule 201.1) was amended to provide for arbitration by consent of any civil action regardless of amount in controversy. Provision was also made for the parties to consent to participation in any other form of alternative dispute resolution.

The Alternative Dispute Resolution Act of 1998 required the district courts to make at least one alternative dispute resolution ‘process’ available to litigants. One such process could arbitration by consent. However, the act placed limitations on civil actions that could be referred to arbitration by consent, including a maximum dollar ‘value’ of $150,000.

This Court has a compulsory arbitration program with the same limitations as are imposed for arbitration by consent under the Alternative Dispute Resolution Act of 1998. Accordingly, ‘consent’ to arbitration becomes meaningless when an eligible civil action would be subject to compulsory arbitration. This led to amendment of Local Civil Rule 201.1 to delete the ‘arbitration by consent’ provision.

It remains the intent of the Court to encourage parties to choose a particular form of alternative dispute resolution. Parties may agree to participate in the mediation process prescribed in L.Civ.R.301.1 or may participate in other forms of alternative dispute resolution such as, by way of example only, mini-trials or summary jury trials. Any such agreement between the parties must, however, be presented to the Judge or Magistrate Judge for approval, who shall consider it with due regard for the calendar and resources of the Court. Should the parties agree on some form of alternative dispute resolution, the District Judge may administratively terminate the civil action pending completion of the alternative dispute resolution procedure.” Ibid

If bankruptcy is the issue in the state of New Jersey, and you want to arbitrate here is the statute that governs this process, USBC D.N.J. LBR 9019-2, where mediation can be referred by the court through a joint request of the parties, or by the court at a status hearing. USBC D.N.J. LBR 9019-2 (c) 1, 2, 3. Bankruptcy Statute

One of the key aspects of the complementary dispute resolution process in New Jersey is that testimony during the arbitration, and any settlement award that the arbitrator granted cannot be used as evidence if the case goes to trial. N.J. R. Evid. 408, N.J. R. Evid 408 (2004), which states:

“Rule 408 -Settlement Offers and Negotiations-when a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or invalidity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations.” N.J. R. Evid. 408

In Brown v. Pica, a personal injury case, the Superior Court of New Jersey Court where the plaintiff had a slip and fall accident. The case went through arbitration, without a successful resolution, and then the issue was brought to trial. The jury found against the defendant homeowners and awarded the plaintiff a verdict of $1.6 million dollars. The defendant filed a motion for a new trial claiming the award was excessive and against public policy; the defendant argued that the settlement offers should be considered in this process. “The court held that permitting the owners to rely on settlement negotiations to prove that damages were excessive violated public policy. This would have created a disincentive for parties to settle cases, as proposed settlement figures would be used against a plaintiff in situations like the instant one.” Brown v. Pica 360 N.J. Super. 565 New Jersey Rule of Evidence 408 is actually broader in scope than the Federal Rule of Evidence 408 (which is almost identical), but the N.J. 408 will bar any conduct or statements made whether or not a mediator or arbitrator is present. This will provide litigants incentive to be forthright and will lessen any fear that anything in the Complementary Dispute Resolution could be used against them at a trial, if that were to occur.

In the Family Law Pilot Program, the Superior Court’s Appellate division held in Isaacson v. Isaacson that a mediator in a child support dispute could not also serve as a guardian ad litem. Isaacson v. Isaacson, 348 N.J. Super. 560 In this case the parties were divorced and there were a number of pot-divorce disputes which needed to be resolved. The Isaacson’s chose the mediation process to resolve the disputes, and the attorney who was the mediator was asked by the father to be the child’s guardian ad litem, and the child’s mother did not approve of that, nor did the court.

Arbitration in and mediation in labor and employment law has been well established in New Jersey; however; the Delaware River Port Authority (DRPA), which was created between New Jersey and Pennsylvania. N.J.S.A. 32:3-1 and Pa. Stat. Ann. tit. 36 3503, asked the court to decide that arbitration for a dual-state agency is outside the scope of arbitration for their employees, the police officers who sought collective bargaining for wage and benefit increases in FOP, Penn-Jersey Lodge 30 v. Delaware River Port Auth. FOP, Penn-Jersey Lodge 30 v. Delaware River Port Authority 323 N.J. Super 444 The workers wanted arbitration but the DRPA did not and argued that each state had their own unique arbitration law and process, but in actuality New Jersey and Pennsylvania arbitration ‘provisions are similar’ and ‘complementary.’ The court held that “the adoption by both compact states of nearly identical state legislation expressly intended to apply to appellant could change the compact and establish binding interest arbitration. The court disagreed and affirmed the lower court's order. Although the court discerned some differences in each state's legislation governing public employer-employee labor disputes, it concluded that those differences did not negate the basic public policy of each state that their public employees were entitled to engage in collective negotiations with their employer.” Ibid. New Jersey has legislation on the books just for these situations, under the Labor and Worker’s Compensation Act, which grants state employees arbitration. N.J. Stat. 34:13A-16

In Jones v. First National Supermarkets, Inc., 329 N.J. Super 125 (App. Div. 2000) which addresses service on all adverse parties with 30 days of filing with the court and Corcoran v. St. Peter’s Medical Center, 339 N.J. Super 337 (App. Div. 2001) which further supports substantial compliance for the application for a trial De Novo. ADR page 30 Finally, the case of Woods v. Shop-Rite Supermarkets, Inc., 348 N.J. Super. 613 makes clear that oral notification of an intent to file for a trial De Novo is not sufficient, and does not suffice the substantial compliance doctrine. Ibid

In Circuit City Stores v. Adams, a 2002 case from the ninth circuit, the United States Supreme court addressed binding arbitration in the private employment sector. The employee, Adams, claimed sexual harassment. Circuit City had a binding arbitration clause in their employment contract with their employees which limited the amount damages that could be available to an employee. The case hinged on the fact the employer drafted the dispute resolution agreement which the court said was more of a “contract of adhesion” and thereby would not be enforced per the court’s ruling. Circuit City Stores v. Adams, 279 F.3d 889 What was key in the ruling was that the court does favor arbitration in the employment and labor sectors pursuant to the Federal Arbitration Act, 9 U.S.C.S. § 1, which states that arbitration agreements are “valid, enforceable, and irrevocable except where law or equity prohibits them.” 9 U.S.C.S. 1 The court found that in a binding arbitration agreement some form “bilaterality” is required so that it is not a one-sided agreement. Circuit City Stores v. Adams, 279 F.3d 889

1. Application for admission to roster of Mediators for Civil, General equity and Probate Cases New Jersey Mediator Application

2. Civil Statewide Attorney Mediation Questionnaire (used by attorney representing litigants in mediation cases at the end of the mediation) New Jersey Questionnaire

Forms for Pilot Program for Mediation of Economic Aspects of Family Law in New Jersey

2. Attorney Questionnaire Form (filled in at the end of the mediation) Attorney Questionnaire

1. New Jersey No-Fault Automobile Arbitration Rules Demand For Arbitration No-Fault Form

2. New Jersey No- Fault Automobile Arbitration Rules Medical Information Form No-Fault Medical Form

3. New Jersey No-Fault Automobile Arbitration Rules Request For Dismissal Form Dismissal Form

4. New Jersey Construction Lien Arbitration Rules Demand For Arbitration Lien Rules

6. Supplementary Procedures for Consumer-Related Dispute Form Consumer Arbitration

Introduction to Complementary Dispute Resolution in New Jersey