United States: New Arbitration Track Proposed In Family Matters

Last Updated: March 15 2013
Article by Robert A. Epstein

There can be many benefits to arbitrating your case, rather than litigating your case through the court system including, but not limited to, a faster proceeding, a more amicable process, decreased litigation costs (despite having to pay the arbitrator), a jointly selected person to preside over your case (perhaps a retired family court judge or an experienced family law attorney), and greater privacy in your matter (especially encouraged in matters involving potential tax issues).  In a move designed to further the use of this private, alternative dispute resolution method between parties in family law matters, the Supreme Court of New Jersey Family Practice Committee has proposed a new "arbitration track".

Interestingly, this new rule would allow the court system to still keep an eye over your matter, impose time limits on the length of the matter, provide specific procedures for parties to follow, and actually incentivize parties to consider this method by giving priority to an arbitration, as if it were an actual trial.

Presently, Rule 5:1-4 of the Rules Governing the Courts of the State of New Jersey establishes different "tracks" for each family case:

  1. Priority track if the matter involves contested custody or parenting time issues.
  2. Complex track if the matter appears likely to require a "disproportionate" expenditure of court and litigant resources in preparation for trial and at trial due to the number of parties, number of claims/defenses, legal difficulty of the issues, factual difficulty of the issues, the length/complexity of discovery, or a combination of all of the above.
  3. Expedited track if it appears that "it can be promptly tried with minimal pretrial proceedings, including discovery," as further detailed in the rule.
  4. Standard track if the matter does not qualify for any of the other three tracks listed above.

You might ask the question - how and when will a court know what track my case should be assigned to.  Well, the rule provides for that too - "as soon as practicable after all parties have filed Family Case Information Statements," (a required document detailing income, assets, liabilities, and budgets) or after a Case Management Conference (a status conference with the court), whichever is sooner.  The parties may also often agree on what track to assign to their case.  Importantly, if the parties agree to a track, the matter will not be assigned to a different track except if there is "good cause" to do so.

The proposed Arbitration Track would be added to this rule, "in the event that the parties enter into a written consent order or agreement to arbitrate issues presented in actions pending before the Family Part."  Straying from the provision above allowing the parties to demonstrate "good cause" in support of a different track assignment or reassignment, a matter on the arbitration track cannot be reassigned even if good cause exists to do so.  Essentially, once you have decided to go down the arbitration track, it is not easy to get off.

Certain notable conditions/prerequisites proposed by the Committee include:

  1. Requiring each party to execute a proposed Arbitration Questionnaire (recommended for inclusion in the Appendix to the Court Rules) prior to executing an agreement or consent order to arbitrate.  Each party's questionnaire would be attached to the agreement or consent order, demonstrating that each party understood the implications of the agreement to arbitrate.
  2. Mandating that no arbitration shall be pending for more than a year following arbitration track assignment (which may be modified on this issue for good cause shown).
  3. Arbitration track cases should be given "scheduling consideration" when fixing trial dates in other matters - an interesting incentive as I highlighted at the outset.
  4. The required certification pursuant to Rule 5:4-2(h) shall indicate that the parties have a written agreement to arbitrate.

The proposed procedure covers all agreements to arbitrate family matters between "parties to any proceeding arising from a family or family-type relationship", except when the matter involves a) the annulment or dissolution of a relationship; b) actions involving the Division of Child Protection and Permanency; c) domestic violence actions; d) juvenile delinquency actions; e) family crisis actions; and f) adoption actions.  

As to an arbitrator's award, the rule proposes:

  1. Unless the agreement or consent order provides otherwise, "any interim award of the arbitrator shall be subject to confirmation by the court in accordance with R. 4:42-1(b)."
  2. Unless the agreement or consent order provides otherwise, "the final award of the arbitrator shall be confirmed pursuant to the procedures set forth in N.J.S.A. 2A:23-1, et seq. and/or N.J.S.A. 2A:23B-1, et. seq."

Thus, it appears that the arbitration agreements will still allow parties to decide what issues will be subject to arbitration and even the degree to which an arbitrator's award will be subject to court confirmation.   A sample written agreement and the proposed questionnaire are also provided.  

It is in the sample agreement where the parties can determine the scope of the arbitration, and wherein it indicates that the matter will remain in the court system while arbitration proceeds pursuant to the proposed time limits.  The proposed agreement also contains language as to arbitrator costs/payment, discovery, the right to review of an arbitrator's award, evidence rules, and the arbitrator's authority.  

Comments on the proposed rule are due by April 1, 2013.  It will be interesting to see if and how proposed track proceeds, and how it will impact upon parties use of alternative dispute resolution.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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