New Jersey courts are facing a serious crisis: judicial vacancies. Currently, the vacancies are not only causing the wheels of justice to turn slowly, in many instances they are grinding to a halt. Despite the hard work and best efforts of the judiciary, there are simply too many cases and not enough appointed judges to hear them. In fact, the Chief Justice of the New Jersey Supreme Court has announced that six of New Jersey’s 21 counties will be suspending virtually all divorce trials “until further notice.”
What is a family law practitioner to do? How can we help spouses move forward with a divorce if they are not able to settle their case?
While the judicial vacancy crisis is specific to New Jersey, the way New Jersey family law practitioners are addressing the problem has implications for family law practitioners throughout the country. Specifically, attorneys have found two options to help move their family law cases forward: (1) resolution without the assistance of the courts through the use of mediators and arbitrators, and (2) remaining within the court system but addressing particularly complex family matters with the help of a “special discovery master.”
Outside the Courts: Mediation and Arbitration
Mediation and arbitration have a strong foothold in the practice of family law today. In New Jersey in particular, this increase in the use of mediation and arbitration of family law cases has been supported by two significant changes in the law.
First, in a break from past practice, New Jersey no longer requires mediators and arbitrators to be separate people, provided the parties agree to something called a Minkowitz waiver. By way of background, in the 2013 case of Minkowitz v. Israeli, the New Jersey appellate court considered the “compatibility of the same party assuming the role of mediator and arbitrator,” and held that “absent the parties’ agreement,” an arbitrator “may not assume the role of mediator and, thereafter, resume the role of arbitrator.” Although recognizing inherent conflicts between the two roles, the Appellate Division did recognize that divorcing spouses, provided they are advised of such conflicts, have the right to hire someone to serve both roles. Accordingly, divorcing parties now have the option to waive the mediator/arbitrator conflict and agree to an arbitrator’s dual role. While not the right choice in every instance, the likelihood of settlement may be increased when parties understand that the mediator ultimately has the power to make rulings as an arbitrator. The mediator’s recommendation can certainly be impactful when parties understand that same person will ultimately be deciding an issue if it is not resolved. In addition, if arbitration becomes necessary, the process can be more efficient as the arbitrator already has the benefit of the knowledge and background concerning the matter.
Second, also in a break from past practice, New Jersey now allows child custody issues to be handled in arbitration. In the 2009 case of Fawzy v. Fawzy, the New Jersey Supreme Court held that the constitutional guarantee of parental autonomy includes the right of parents to choose arbitration as the forum in which to resolve their disputes over child custody and parenting time. While acknowledging the court’s obligation under the parens patriae doctrine to prevent harm to a child, the Supreme Court recognized that the right of parental autonomy should extend to the decision on whether to arbitrate child custody matters.
Thus, with these two recent developments in family practice, litigants are permitted to go on an “arbitration track” for their cases, which keeps the case out of the court system almost entirely. They can use one party as both mediator and arbitrator, and they can elect to arbitrate all issues, including both parenting and financial issues, if they so choose.
Within the Court System: The Special Master
The second development that allows family practitioners to keep a case within the court system but try to move the case forward more expeditiously is through the use of a “special discovery master.” Once less frequently seen in family law cases, special masters are becoming more common and can be particularly helpful when a complex financial case presents thorny, sophisticated discovery issues. It should be noted, however, that the court overseeing a family matter still has the final say on whether a special master should be appointed in any given case. Additionally, rulings made by a special master do remain subject to appeal to the trial court. That said, it has been our experience that rulings are more often than not accepted by the parties and affirmed by the trial court if challenged.
Thus, while there is a possibility for two levels of litigation, we have found litigating discovery issues with a special master is more efficiently and effective, because the person appointed to serve as the special master should have the time, inclination, and interest to tackle discovery issues that the trial court, even under better circumstances, does not necessarily have the time to address.
Neither option is necessarily the right choice for every case, and both come with potential obstacles and burdens. That said, particularly when cases are mired in a court system ill-equipped to handle them, dual role arbitration/mediation or the appointment of a special master may be an answer to help your clients move their case forward.