Arbitrations and mediations are two similar, but often confused concepts. Whereas a mediation is a collaborative effort designed to encourage settlement, an arbitration is basically a trial, where a neutral third-party will determine the outcome based on the evidence presented. Unlike a typical trial, however, you can choose the judge, the venue, and even the rules.

What follows is a transcript of the below video.

“Hey everybody. I hope you’re doing well. The topic of today’s video is going to be arbitrations in New Jersey divorce proceedings. If you’re familiar with my video on mediations, you might remember I mentioned there are two versions of alternative dispute resolution. Mediations are the most common, right. But the other kind is arbitration, it’s not as commonly used, it’s not as well understood, but I think it’s a very, very powerful tool that you might want to think about availing yourself of under the right circumstances.

Now, for whatever reason, mediations and arbitrations are thought by a lot of people to be the same thing, but they’re not, they’re very different. A mediation is when your side, we say you and your to attorney, and the other side get together, you guys hire a third attorney to act as a mediator who tries to bring you guys into a settlement. They try to get you to agree on what you’re going to settle the case at. It’s non-binding, okay.

Arbitration is totally different. Arbitration is really just a trial, but it’s a trial where you get to choose your own judge, you get to choose your own venue, and you get to choose your own rules, okay. In the context of a divorce, you’re going to have a lot of time spent on trying to resolve the case with a settlement, 98% of cases settle, but there’s that 2% of cases that go to a trial. When that happens, you get assigned a trial judge, and they’ll assign you a trial date, and your case might be heard on that day and it might not. If it is heard, you might only get an hour’s worth of testimony in, the trial could take many weeks, and maybe many months, because unlike a criminal trial, where on Monday you pick a jury, and then you just start the trial and you keep doing it every day until it’s over basically.

In a family trial, in a divorce trial, what’s going to happen is, is they’ll call you in on whatever date, you’re going to sit there at 9:00 AM, you’re going to wait until the judge gets through his other cases that morning to finally have time for your case, and maybe you’re heard in the morning, maybe you’re heard in the afternoon, maybe they hear you for a few hours, maybe they hear you for one hour. Then that’s not nearly enough time to do the whole divorce, so they’ll say, okay that’s enough for today. Can you guys come back in two weeks or three weeks? You’ll come back and you’ll do another hour or two’s worth of testimony. This isn’t how it happens always, but this is how it happens enough of the time, all right. You just keep coming back and back until the trial is actually over.

I saw a domestic violence trial one time when I was a law clerk that took 18 different hearings, 18 different hearing dates over the course of months, something that should have just taken an afternoon, because the court’s schedule is so busy that they can’t just do things all at one time, right. They can only just it, kind of piecemeal. There is actually a court rule against that, that says that in as far as possible family court trials are supposed to be heard continuously, but that’s not really adhered too strictly.

Well here’s the thing, maybe you don’t want to go through that process. Maybe you’ve tried to settle the case, you’ve got this judge, you got this trial date, but you don’t know this judge. You don’t want to have to come back 20 different times to get your trial over with, and God only knows how long it’s going to take. By the way, trials these days are taking forever to schedule, all right, thanks in large part to COVID. They’ve always taken a while, but now they’re taking even longer, all right. The judge, you don’t know this judge, you don’t even know if this judge is experienced in family law. I know lots of judges who are wonderful people and very smart and have zero experience whatsoever in family law, okay.

Well, maybe you want to kind of eliminate those variables. If so, an arbitration’s probably where you want to go. What happens is your attorney will contact the other side’s attorney and say, look, why don’t we think about arbitrating this? In that case you guys will choose your own judge okay. Not an actual superior court judge or someone like that, but you’re actually just going to hire another attorney to act as a judge, and that other attorney is going to conduct the trial. It’s not going to be in a courtroom, it’s going to probably be in his office. You can choose actually where you want to do it. You can do it, maybe at his office, maybe your attorney’s office, maybe the other attorney’s office. You can choose, that’s the point. With arbitration you can choose a lot of things. You’re choosing your judge, you guys get to choose and agree upon what venue you want to use, you get to choose and agree upon what rules are going to govern the proceeding, and it’s going to be a lot more relaxed, okay. That’s the point.

Now, listen, here’s a thing though, unlike a mediation, since this is a trial, the results are going to be binding on you. That’s something you have to keep in mind, that, that arbitrator, unlike a mediator, who’s going to hear your case and kind of say, all right, well here’s what I should happen, maybe you should give a little more here, maybe you should take a little less there, and try to get some kind of agreement, the arbitrator doesn’t really care if you agree or not, he’s going to hear your evidence, he’ll hear the other side’s evidence, and then he’s going to make a decision, and that decision is going to be imposed upon you. That’s what you need to understand, all right. Just like a judge would impose his decision on you in a final judgment, an arbitrator’s going to do the same thing. Even though he’s not technically a judge, his decision is going to basically get sent to the superior court judge who’s overseeing your case, and it’s going to get memorialized into a final judgment of divorce, just like any other.

Now, the one drawback to this, the one drawback is your right to appeal is very, very, very limited. In fact, I would say it’s so limited, it’s not even worth discussing, okay. Basically understand this, if you go into an arbitration, and there’s every reason in the world to do it, just understand you’re not going to have the same right of appeal as you would with the superior court judge, everything else I think is in your favor. You’re choosing your own judge, you’re choosing when the trial is going to be, what hours during the week the trial’s going to be okay. You guys want to start your trials at 11, and take two hour lunches and finish by three o’clock, whatever you can do it. You can maybe even agree to do it on weekends, if that’s what you agree to.

Keep this in mind, that arbitrator who’s being hired by you, and hired by the other party on the recommendation of your attorney and the other party’s attorney, he wants to make you happy, so he gets hired again by these attorneys. It doesn’t mean he’s going to show you favoritism, because obviously there’s two sides here, but it does mean they’re they’re going to show you a lot more flexibility, a lot more courtesy, it’s going to be altogether a much more comfortable experience because they want to work with you so that you’re happy, so they can work with your attorney and the other attorney again later on. The last thing they want is these attorneys going home and being like, man we’re never using that guy again. They’re going to do their best to be fair and consider.

That’s not to say that superior court judges aren’t fair and considerate, but let’s just be honest, they don’t know you as well. They’re not going to take the time to know you as much, and they have other cases on their docket. When you’re hiring your own arbitrator, and you’re paying this guy good money, you’re getting his full undivided attention, and he’s doing so and so such a way because he wants to be hired again. Keep that in mind.

Now I did mention hired. You are going to have to pay this person, that’s how it is. He’s probably going to charge the same amount that your attorney is charging. Although obviously it’s going to be divided over two people, so expect to pay the arbitrator $400 an hour, or something like that, and you’ll be responsible for half of that. Is that more expensive than the superior court judge that you’re getting for free? Well, you might think so, but keep in mind, you’re doing this much more quickly, so unlike the superior court situation where you’re hiring your attorney to show up at court at 8:30, and who knows when he even gets heard, maybe he sits around for four hours before that case is heard. Now you’ve paid your attorney four hours to do nothing, then you do your little trial and you come home, well then you got to go back to court again.

Think about how many times you’re paying your attorney to drive to court, paying your attorney to sit around and wait for that case to be called, paying your attorney to drive home from court, and think about how many months that can drag on. It’s much better just to get the whole thing done in two or three days, just bite the bullet, do it all in one fell swoop. Yeah, you’re going to pay the arbitrator a little bit of money, but that’s a lot less in all likelihood then you’re going to wind up having to pay your attorney to do a superior court trial over the course of several weeks, perhaps several months, especially if your attorney can work with the arbitrator and the other attorney to streamline the process and really narrow it down, and streamline the rules of evidence and figure out what can get admitted and how you’re going to do it. The whole thing is just a lot more relaxed and a lot more convenient. It’s basically a private trial.
You know it’s a funny thing, I’m actually a public defender in one town. I’ve been a public defender in others, and I’ve handled cases outside of the divorce context in other fields of law, and you hear a lot of people complain sometime about the court system. Well, you know, these courts don’t call me back. I contacted the clerk, they don’t call me back, and I’ve been sitting around all day. I’ve just been waiting here, and this and that, and they didn’t even hear my case. What I usually tell these people is, hey guys, what are you going to do shop at a different court? You committed your offense in this town, this is the town that has jurisdiction over you. You brought your lawsuit in this county, this is the county that has jurisdiction over you. You get assigned a judge whether you like it or not, you can’t shop somewhere else. It’s not like going to a different store.

Well here’s the thing, with an arbitration you can shop somewhere else. Arbitration is your chance to decide. You want to pull this case away from the superior court into what’s basically going to be a much friendlier, more convenient, and I would say more cost effective environment. It’s something to think about. It’s not right in every case, but I think it’s more right than people realize, and is really underutilized and should be used more often. That’s my short blurb on arbitrations.

If you want to talk to me about that or anything else within the divorce context, I’m happy to do free consultations. Just call the number below. I’m happy to do a 15 minute consultation with you if you have any questions about this, or anything else about divorces in New Jersey. Okay guys, thanks a lot. Take care of yourself and God bless.”