You don’t need to be a celebrity or a high income business person to feel the pain of a costly, prolonged, and totally public divorce trial. There are alternatives: A settlement between the two parties is an immediate option, followed by mediation, collaborative divorce, in which both sides agree to certain ground rules and share expert opinions, and arbitration.
While arbitration has been used for many years in other kinds of lawsuits, and it also has gained the attention of divorce lawyers as an alternative to a court trial, as New Jersey courts have become burdened with a backlog of divorce cases.
John Eory, a partner at the law firm of Stark & Stark who has been practicing matrimonial law since 1976, will discuss arbitration as it relates to divorce cases in two free seminars: Tuesday, August 22, and Thursday, September 28. Both begin at 5:30 p.m. at the Stark & Stark offices at 993 Lenox Drive, Building 2, Lawrenceville. Pre-registration is mandatory at www.StarkSeminar.com. For more information call 609-895-7246.
Eory, who earned his undergraduate degree at Temple University, Class of 1970, and his law degree at Temple’s E. Beasley School of Law, is a fellow of the American Academy of Matrimonial Lawyers (AAML) and an AAML-certified divorce arbitrator. He is also a frequent contributor to the New Jersey Law Blog (njlawblog.com). In a post made on May 15, Eory cited some issues that should be taken into account when considering divorce arbitration:
1.) It is important to distinguish arbitration from mediation. While mediation involves the assistance of a third party “neutral” to encourage and facilitate a resolution, arbitration is akin to litigation on an expedited basis. In other words, at the conclusion of an arbitration hearing the arbitrator renders a decision just as would a judge hearing the case.
2.) The selection of an arbitrator is essential. My recommendation is to utilize a family law attorney who has been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers in the place of a judge who may have had limited or perhaps no family law experience prior to his or her appointment to the bench. The selection is also critical since the arbitrator’s decision will generally be binding.
3.) The issues that will be arbitrated must be determined. In short, the parties and their attorneys would make this determination in advance, to include arbitration of related non-family law matters. If custody is involved, New Jersey’s inherent jurisdiction over the welfare of children within its borders means that an arbitration decision in this area is subject to review by a court.
4.) The protocol of an arbitration hearing is important to consider. For example, should a court reporter be present to transcribe testimony and mark exhibits or will a less expensive means such as audio-recording suffice? Should the rules of evidence strictly govern at the hearing or be relaxed? Where will the arbitration take place? Will the arbitrator’s fee be advanced by one party or shared? Will such payment be subject to adjustment by the arbitrator? Needless to say, these and any other questions should be resolved in advance.
5.) Once arbitration commences, the case will proceed with witnesses testifying and documents submitted to the arbitrator consistent with the rules of evidence, as discussed above. At the conclusion of the hearing the arbitrator will advise the parties of a date for issuance of his or her decision, depending on the complexity of the issues involved. The goal of a divorce arbitrator is to render a decision within 30 days, if possible.
Eory concludes that divorce arbitration is “a far cry from the courthouse experience.” He adds that “it is also in the best interests of children who desire a conclusion of their parents’ divorce and a certainty of their future.”