By Charles F. Vuotto, Jr.
Family lawyers and judges now have new and improved Rules of Court and forms to assist litigants in resolving their disputes outside the courtroom.
Family lawyers and judges now have new and improved Rules of Court and forms (found in the Appendix to the Rules) to assist litigants in resolving their disputes outside the courtroom. The genesis of this process began with the scholarly decision penned by Justice Virginia Long about six years ago in the landmark case of Fawzy v. Fawzy, 199 N.J. 456, 482 (2009). As a result of Justice Long’s direction, the Supreme Court created the Ad Hoc Committee on the Arbitration of Family Matters (“Ad Hoc Committee”).
As to the Rules of Court, we first start with R. 5:1-4, which was amended to add an “Arbitration Track.”
Previously, cases could only be assigned to four tracks including “priority”, “complex”, “expedited” and “standard.” Now, if the parties agree, the court is now permitted to send the case on a non-litigation track for arbitration or alternative dispute resolution. Note that R. 5:1-5(c) provides that no action shall be placed on the Arbitration Track for more than one year;, but the term may be extended by the Court for good cause. The last sentence of Rule 5:1-4(a)(5) that states: “Issues not resolved in arbitration shall be addressed in a separate mediation process of by the court after disposition of the arbitration.”
There is a new Rule, specifically, R. 5:1-5, which provides the bulk of the new arbitration provisions.
R. 5:1-5 applies to all Agreements and Consent Orders to Arbitrate (“Consent Orders”) a family law matter, including but not limited to those entered into pursuant to the Uniform Arbitration Act (“UAA”) (to wit: N.J.S.A. 2A:23B-1 to 32), the Alternative Procedure for Dispute Resolution Act (“APDRA”) (to wit: N.J.S.A. 2A:23A-1 to 9) or any other agreed upon framework. Parties cannot agree, however, to arbitrate the following issues: (a) the entry of the final judgment of annulment or dissolution of relationship; (b) actions involving the Division of Child Protection and Permanency; (c) Domestic Violence Actions; (d) Juvenile Delinquency Actions; Family Crisis Actions; and (e) Adoption Actions. The Rules provide certain prerequisites to any agreement to arbitrate. The Agreement or Consent Order to Arbitrate must state that: (a) the parties understand their entitlement to a judicial adjudication of their dispute and are willing to waive the right; (b) the parties are aware of the limited circumstances under which a challenge to the award may be advanced and agree to those limitations; (c) the parties have had sufficient time to consider the implications of their decision to arbitrate; and (d) the parties have entered into the Agreement or Consent Order freely and voluntarily, after due consideration of the consequences of doing so. In addition to the foregoing, R. 5:1-5(b)(2)(B) provides that in all family proceedings involving child-custody and parenting-time issues, the Agreement or Consent Order shall provide that: (a) a record of all documentary evidence shall be kept; (b) all testimony shall be recorded verbatim; and (c) the award shall state, in writing, findings of fact and conclusions of law with a focus on the best-interest of the child standard. Similar requirements apply to all family proceedings involving child support issues as well as complying with the Child Support Guidelines portions of the Rules. Prior to the execution of any agreement or entry of a Consent Order, each party must review and execute the Arbitration Questionnaire, which is now set forth in Appendix XXIX-A. Each party’s questionnaire shall be attached to the Agreement or Consent Order.
New Rule R. 5:3-8 addresses the review and enforcement of arbitration awards.
The new Rules of Court now provide various forms to assist litigants and attorneys in memorializing their agreement to resolve a family law matter through arbitration or alternative dispute resolution. Inclusive thereof are forms for arbitrating under the UAA and APDRA.
The first form is a questionnaire that is to be reviewed and executed by each party prior to execution of an Agreement or Consent Order submitting a family law matter to arbitration/alternate dispute resolution. The purpose of the questionnaire is to verify to the court (in any subsequent proceeding) that the party has read the Agreement or Consent Order, understands its terms, understands that he or she has the right to a trial to resolve whatever issues are being submitted to arbitration/alternate dispute resolution, that he or she is waiving his rights to appeal and has limited ability to challenge the awards of an arbitrator/umpire, has had time to consider the implications of his/her decision to arbitrate, is doing so freely and voluntarily, is not under the influence of any substance, had all of his or her questions answered and agrees to be bound by the arbitration/ADR Agreement or Consent Order. If child support, custody or parenting time are in issue, each party must also reflect their understanding that an award pertaining to said issues can be vacated if either party can establish that it threatens or poses a risk of harm to the child or children, that a party will not be able to challenge, vacate, modify or amend the award solely because he or she thinks the best interest of the child are better served by a different decision, and understands the requirements regarding maintaining documentary evidence and creating a record.
The actual agreements to arbitrate, either under the UAA or the APDRA, are found at Appendix XXIX-B and Appendix XXIX-C, respectively. These are very long documents that must be tailored to fit the facts of every case. They permit the parties to design the process in a way that makes sense for them.
Lastly, in order to verify the independence of the arbitrator or umpire, the Rules of Court require that a disclosure form be reviewed and executed by the arbitrator/umpire prior to execution of an Agreement or Consent Order submitting a family law matter dispute to arbitration or ADR process.
It is critical for any attorney representing a litigant contemplating entering into an Agreement or Consent Order to arbitrate review the amendments to R. 5:1-4 and the new Rules of Court, to wit: R. 5:1-5 and R. 5:3-8. Further, it is important to recognize that the form agreements attached as Appendix XXIX-B and XXIX-C are provided to help develop an Arbitration Agreement or Consent Order. These forms, other than mandatory provisions as stated in the Introductory Note to each form must be tailored to the particular facts and circumstances of each case.
Charles F. Vuotto, Jr., Esq. is the Managing Partner of the law firm of Tonneman, Vuotto, Enis & White, LLC with offices in Matawan and Roseland, New Jersey. He is trained as a family law mediator, and as an arbitrator of matrimonial issues by the Academy of Matrimonial Lawyers (AAML). Mr. Vuotto is certified by the Supreme Court of the State of New Jersey as a Matrimonial Law Attorney. He is a past Chair of the Family Law Section of the New Jersey State Bar Association. Since 2010, he has served as the Editor-in-Chief of the Family Law Section’s prestigious publication, the New Jersey Family Lawyer. Mr. Vuotto is a one of approximately 1,600 Fellows across the nation admitted to the AAML and has been elected to the Board of Managers of its New Jersey Chapter. www.tvewlaw.com