NJ
Arbitration and Mediation
NJ divorce lawyer, Charles Vuotto successfully completed The American Academy of
Matrimonial Lawyers’ (“AAML”) arbitration training in 2010. He is the current
Chair of the Arbitration Subcommittee of the NJSBA Family Law Section. Mr.
Vuotto is a member of the NJ Divorce Arbitrators Association. He is a Past
Chair of the NJSBA Family Law Section and is the current Editor-in-Chief of the
New Jersey Family Lawyer; he has and will continue to dedicate himself to
the betterment of the Family Law Section and to the equitable resolution of
family matters through alternate dispute resolution.
As recently emphasized by the Supreme Court in the case of
Fawzy v. Fawzy, 199 N.J. 456 (2009) “our courts have long noted our public
policy that encourages the use of arbitration proceedings as an alternative
forum.” Our Supreme Court went on to state that the objective of arbitration
is,
[t]he final
disposition, in a speedy, inexpensive, expeditious and perhaps less formal
manner, of the controversial differences between parties. Arbitration can attain
its goal of providing final, speedy and inexpensive settlement of disputes only
if judicial interference with the process is minimized; it is, after all, meant
to be a substitute for and not a springboard for litigation.
Over 25
years ago, the New Jersey Supreme Court in Faherty v. Faherty, 97 N.J. 99
(1984) approved the arbitration of some family law issues, alimony and child
support in particular. The Supreme Court reserved on arbitrating custody and
time sharing. The reservation left open in Faherty was resolved by the
Fawzy Supreme Court, which now permits the arbitration of custody and
time sharing issues. The Court conditioned these arbitrations upon compliance
with certain prerequisites and the application of a modified standard of
review.
Further buttressing these
positions are the Bounds of Advocacy promulgated by the American Academy of
Matrimonial Lawyers (“AAML”). As stated in the Preliminary Statement of the
Bounds of Advocacy, “few human problems are as emotional, complicated or seem so
important as those problems people bring to matrimonial lawyers.” The Bounds of
Advocacy reflect the availability of additional ways to resolve disputes. The
Bounds of Advocacy specifically state that “Advocacy skills may also be used to
a client’s advantage in arbitration or mediation. An effective advocate’s stock
and trade is the power to persuade.” This power to persuade is not necessarily
limited to courtroom advocacy. The following paragraph from the Preliminary
Statement is especially important to consider:
The traditional view of the
matrimonial lawyer (a view still held by many practitioners) is of the zealous
advocate whose only job is to win [footnote omitted]. However, the emphasis on
zealous representation of individual clients in criminal and some civil cases is
not always appropriate in family law matters. Public opinion (both within and
outside the AAML), has increasingly supported other models of lawyering and
goals of conflict resolution in appropriate cases. A counseling, problem
solving approach for people in need of help in resolving issues and conflicts
within the family is one model; this is sometimes referred to as ‘constructive
advocacy.’ Mediation and Arbitration offer alternative models. Mediation is a
method of resolving disputes in which a trusted neutral attempts to facilitate a
compromise between the parties. Arbitration involves the hiring of a respected
neutral to hear both sides, then make decisions that will resolve the
controversy.
The client’s best interests
include the well being of children, family peace, and economic stability. Trial
is an extremely costly endeavor, both in dollars, disruption of one’s daily life
and emotional upheaval. It is rarely (if ever) in anyone’s best interest.
Arbitration and mediation are
exploding in light of the economy, increase in family law filings and decreasing
judicial resources. Mr. Vuotto has been on the cutting edge of these issues as
is evidenced from the various articles and columns that he has written along
with his involvement in drafting a Family Law Arbitration Statute, which was
submitted to the New Jersey State Bar Association while he was Chair of the
Family Law Section.
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