The first-filed rule of comity states that “the court which first acquires jurisdiction has precedence” over another court later acquiring jurisdiction absent “special equities,” Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978). The first-filed rule generally requires that a court with jurisdiction over a matter should defer to the court that first acquired jurisdiction over the dispute. Yancoskie, supra, 78 N.J. at 324. The rule, however, is “not . . . inflexible,” and “the presence of special equities may lead a court to disregard the traditional deference paid to the first-filed action.” Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 387 (2008).

The public policy in favor of arbitration invoked often in our courts, see, e.g., Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), is not just a policy of this State. The Supreme Court of the United States recognized in Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858, 79 L. Ed. 2d 1, 12 (1984), that, in enacting the Federal Arbitration Act, 9 U.S.C.A. §§ 1 to 16, “Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” See also Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002).

In light of this weighty public policy, there is no principled reason for viewing a demand for mediation or arbitration, contractually stipulated as a means for resolving disputes, as something that has no value or less value in this analysis than a complaint filed in a civil court.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A demand for mediation or arbitration, contractually stipulated as a means for resolving disputes, is comparable to a filing of a complaint in a civil court originally appeared on NJ Family Issues on February 6, 2012.

New Jersey has a strong public policy favoring the enforcement of property settlement agreements. Matrimonial settlements are “‘entitled to considerable weight with respect to their validity and enforceability’ in equity, provided they are fair and just” because they are “‘essentially consensual and voluntary in character.’” Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Such agreements “are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.” Konzelman v. Konzelman, 158 N.J. 185, 194 (1999). Consequently, the court accords “particular leniency to agreements made in the domestic arena, and likewise allow[] judges greater discretion when interpreting such agreements.” Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

Mediation is a recognized and appropriate process for the voluntary resolution of family disputes. See Lerner v. Laufer, 359 N.J. Super. 210, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003); see also R. 1:40-5. Additionally, our Supreme Court has approved voluntary agreements between parties to use alternate methods to settle marital issues. Fawzy v. Fawzy, 199 N.J. 456, 477 (2009); Faherty v. Faherty, 97 N.J. 99, 107 (1984).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The court accords particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements originally appeared on NJ Family Issues on January 30, 2012.

For parties to be bound by the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, it is “‘sufficient that [they] signify their intention to resolve their dispute by reference’” to the Act. Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 146 (1998) (quoting N.J.S.A. 2A:23A-2a).

“The APDRA . . . provides that once a court grants an order confirming, modifying, or correcting an award, ‘a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further review of the judgment or decree.’” Ibid. (quoting N.J.S.A. 2A:23A-18b). Although such “limited judicial review is a central component of the APDRA,” the parties can expand its scope by the terms of their agreement to proceed under the Act. Id. at 149.

However, there are “‘rare circumstances’ grounded in public policy that might compel [the Appellate Division] to grant limited appellate review.” Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 152 (1998) (quoting Trentino Printing Inc. v. Fitzpatrick & Assocs., 135 N.J. 349, 364-65 (1994)). The decision suggests that review is compelled in circumstances where courts have a “nondelegable, special supervisory function.” Ibid. (internal quotation marks omitted). The rare exceptions include: child support and the best interests of children, ibid.; rulings rendered by a biased judge, ibid.; judicial decisions that exceed the court’s authority or ignore statutory standards, N.J. Citizens Underwriting Reciprocal Exch. v. Collins, 399 N.J. Super. 40, 48 (App. Div.), certif. denied, 196 N.J. 344 (2008); Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 476 (App. Div. 2007); and the award of attorney’s fees, which is governed by court rules and Rules of Professional Conduct and “within the exclusive supervisory powers of the [c]ourt,” Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 473 (App. Div. 2005).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

The New Jersey Alternative Procedure for Dispute Resolution Act originally appeared on NJ Family Issues on January 10, 2012.

Our State’s strong public policy favors arbitration, an alternative means of dispute resolution, EPIX Holdings Corp. v. Marsh & McLennan Companies, 410 N.J. Super. 453, 471 (App. Div. 2009), particularly in matrimonial matters, Faherty v. Faherty, 97 N.J. 99, 105-06 (1984).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Our State’s strong public policy favors arbitration, an alternative means of dispute resolution, particularly in matrimonial matters originally appeared on NJ Family Issues on January 8, 2012.

“The [New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -19,] is a voluntary procedure for alternative dispute resolution that is only operative when parties to a contract agree to be governed by it.” Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 145 (1998) (citing N.J.S.A. 2A:23A-2). Any award made pursuant to the APDRA “must be acknowledged and in writing, and must ‘state findings of all relevant material facts, and make all applicable determinations of law.’” Id. at 146 (quoting N.J.S.A. 2A:23A-12(a)). “The APDRA further provides that once a court grants an order confirming, modifying, or correcting an award, ‘a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further review of the judgment or decree.’” Ibid. (quoting N.J.S.A. 2A:23A-18(b)).

However, in the “rare[st of] circumstances,” Tretina Printing, Inc. v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994), an appellate court can exercise its “supervisory function” and avoid the APDRA’s proscription against review. Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103 (App. Div. 2010).

The Appellate Division has exercised such review in only the most unusual situations. See e.g., Open MRI & Imaging of Rochelle Park v. Mercury Ins. Group, 421 N.J. Super. 160, 166 (App. Div. 2011) (finding appellate review appropriate “when the relief sought in arbitration (reformation) is beyond the power of the DRP to award”); Liberty Mut. Ins. Co. v. Garden State Surgical Ctr., L.L.C., 413 N.J. Super. 513, 517 (App. Div. 2010) (the APDRA did not bar appellate review of “the judge’s denial of leave to file an amended complaint or of the judge’s dismissal of the action on timeliness grounds”); Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475 (App. Div. 2007) (supervisory function invoked for failure to rule on all of the specific claims made by the plaintiff); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 474 (App. Div. 2005) (award of counsel fees triggered review).

The provisions in N.J.S.A. 2A:23A-13 “define[] the scope of the trial judge’s jurisdiction in such matters.” N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., L.L.C., 399 N.J. Super. 40, 48 (App. Div.), certif. denied, 196 N.J. 344 (2008). The statute provides:

b. In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision; provided, however, that when the application to the court is to vacate the award pursuant to paragraph (1), (2), (3), or (4) of subsection c., the court shall make an independent determination of any facts relevant thereto de novo, upon such record as may exist or as it may determine in a summary expedited proceeding
. . . .
c. The award shall be vacated on the application of a party . . . if the court finds that the rights of that party were prejudiced by:
(1) . . .
(2) . . .
(3) In making the award, the umpire’s exceeding their power or so imperfectly executing that power that a final and definite award was not made;
(4) . . . or
(5) The umpire’s committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.

[N.J.S.A. 2A:23A-13(b) and (c).]

When the claim is made, therefore, that the umpire “exceed[ed] [her] power or so imperfectly execut[ed] that power that a final and definite award was not made,” the judge must de novo consider the factual record, and, if necessary, order a summary proceeding to supplement the record.

N.J.S.A. 2A:23-13(f) further provides:

Whenever it appears to the court to which application is made . . . either to vacate or modify the award because the umpire committed prejudicial error in applying applicable law to the issues and facts presented . . . [N.J.S.A. 2A:23A-13(c)(5)], the court shall, after vacating or modifying the erroneous determination of the umpire, appropriately set forth the applicable law and arrive at an appropriate determination under the applicable facts determined by the umpire. The court shall then confirm the award as modified.

Thus, only if the judge concludes the umpire’s application of the law to the facts was “prejudicial[ly] erro[neous]” may the judge “vacat[e] or modify[] the erroneous determination,” and apply the “applicable law” to reach the proper result.

“When the trial judge adheres to the statutory grounds in reversing, modifying or [affirming] an arbitration award, [the Appellate Division] ha[s] no jurisdiction to tamper with the judge’s decision or do anything other than recognize that [he] has acted within his jurisdiction.” N.J. Citizens Underwriting Reciprocal Exch., supra, 399 N.J. Super. at 48.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The New Jersey Alternative Procedure for Dispute Resolution Act (APDRA) is a voluntary procedure for alternative dispute resolution that is only operative when parties to a contract agree to be governed by it originally appeared on NJ Family Issues on January 8, 2012.

Fee arbitration committees have jurisdiction to arbitrate fee disputes between clients and attorneys. R. 1:20A-2(a). The decision of the fee arbitration committee is final and binding on the parties and the Disciplinary Review Board (DRB or Board), alone, has appellate jurisdiction in these matters. R. 1:20A-3(c); see also Linker v. Co. Car Corp., 281 N.J. Super. 579, 587 (App. Div. 1995).

Rule 1:20A-3(d) sets forth the procedure for appealing the determination of the fee arbitration committee to the DRB:

The party taking an appeal shall file a notice of appeal in the form prescribed by the Board within twenty-one days after the parties’ receipt of the Fee Committee’s written arbitration determination. The notice of appeal shall be filed with the Board and shall include a statement of the ground for appeal and an affidavit or certification stating the factual basis therefor.

The grounds for appealing fee arbitration determinations are extremely narrow. Under Rule 1:20A-3(c), no appeal from the determination of a fee committee may be taken by the client or the attorney to the DRB except where facts are alleged that:

(1) any member of the Fee Committee hearing the fee dispute failed to be disqualified in accordance with the standards set forth in R. 1:12-1; or
(2) the Fee Committee failed substantially to comply with the procedural requirements of R. 1:20A, or there was substantial procedural unfairness that led to an unjust result; or
(3) there was actual fraud on the part of any member of the Fee Committee; or
(4) there was a palpable mistake of law by the fee committee which on its face was gross, unmistakable, or in manifest disregard of the applicable law, which mistake has led to an unjust result.

In this regard, the DRB “shall dismiss the appeal on notice to the parties if it determines that the notice of appeal fails to state a ground for appeal specified in paragraph (c) of [Rule 1:20A-3] or that the affidavit or certification fails to state a factual basis for such ground.” R. 1:20A-3(d).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Fee disputes between clients and attorneys originally appeared on NJ Family Issues on December 7, 2011.

A trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, “inadmissible evidence frequently, often unavoidably, comes to the attention of the [fact finder].” State v. Winter, 96 N.J. 640, 646 (1984).

You are wise to consider Collaborative Law and Mediation as alternatives to Litigation!

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition originally appeared on NJ Family Issues on December 7, 2011.

On a national level, section 2 of the FAA, 9 U.S.C. § 2, mandates a “liberal federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765, 785 (1983). In New Jersey, our Legislature reinforced those policies with its 2003 enactment of a modified version of the Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32 (“the Arbitration Act”). See L. 2003, c. 95. Our case law also has expressed those same policies favoring the use of arbitration as a dispute resolution tool, subject to certain limited exceptions. See, e.g., Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002) (citing N.J.S.A. 2A:24-1 to -11); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131 (2001).

The Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32 (“the Arbitration Act”), instructs in section 6 that:

a. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.
b. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.
c. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.
d. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

[N.J.S.A. 2A:23B-6.]

Section 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, provides that absent a claim of fraud in the arbitration provision itself, a claim of fraud in the inducement of the contract is a matter to be decided in the first instance by the arbitrator, not by the courts.

Such a claim must be presented in the first instance to the arbitrator and not to the court. See Van Syoc v. Walter, 259 N.J. Super. 337, 338-39 (App. Div. 1992), certif. denied, 133 N.J. 430 (1993) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S. Ct. 1801, 1806, 18 L. Ed. 2d 1270, 1277 (1967)). “It is not whether the contract can be attacked ⎯ but the forum in which the attack is to take place. Unless the arbitration provision itself was a product of fraud, the election [of arbitration] should be enforced.” Id. at 339; see also Moore v. Woman To Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 36-37 n.1 (App. Div. 2010); Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 338 (App. Div.), certif. denied, 188 N.J. 353 (2006).

Subsection c of N.J.S.A. 2A:23B-6 mandates that “[a]n arbitrator shall decide . . . whether a contract containing a valid agreement to arbitrate is enforceable.” N.J.S.A. 2A:23B-6(c). These determinations are subject to ultimate judicial review pursuant to section 23(a)(5) of the Arbitration Act, which prescribes that, “[u]pon the filing of a summary action . . . [a] court shall vacate an award made in the arbitration proceeding if . . . there [is] no agreement to arbitrate.” N.J.S.A. 2A:23B-23(a)(5).

The language in subsection (a)(5) encompasses the review of arguments that the parties never attained an enforceable meeting of the minds. Similarly, the parties could seek judicial review if the arbitrator found the contract provisions unenforceable.

A claim of unconscionability may have two aspects: procedural and substantive. A contract provision that is procedurally and substantively unconscionable can be set aside. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed.2d 763 (2007). “[P]rocedural unconscionability . . . ‘can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]‘” Ibid. (quoting Sitogun Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002).

A contract term of adhesion, presented by the drafting party to the other party on a take-it-or-leave-it basis, typically involves “some characteristics of procedural unconscionability[.]” Id. at 16. Substantive unconscionability essentially refers to the inclusion within a contract of “harsh or unfair one-sided terms.” Id. at 15 (citing Sitogum, supra, 352 N.J. Super. at 564-66). In general, courts must undertake “a careful factsensitive examination into [claims of] substantive unconscionability.” Id. at 16.

assertions of the unconscionability of an arbitration provision are customarily to be decided by the courts and not by the arbitrator, because such claims go to the arbitrability of the agreement itself. See Prima Paint, supra, 388 U.S. at 403-04, 87 S. Ct. at 1806, 18 L. Ed. 2d at 1277,; see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-44, 115 S. Ct. 1920, 1923-24, 131 L. Ed. 2d 985, 993-94 (1995). In fact, the courts of our state have made such determinations of unconscionability in various circumstances. See, e.g., Muhammad, supra, 189 N.J. at 22; Delta Funding Corp. v. Harris, 189 N.J. 28, 41 (2006). Such a judicial assessment is consistent with section 6 of the Arbitration Act, which prescribes in subsection (b) that “[t]he court shall decide whether an agreement to arbitration exists or a controversy is subject to an agreement to arbitration,” leaving it to the arbitrator in subsection (c) to decide “whether a contract containing a valid agreement to arbitrate is enforceable.” N.J.S.A. 2A:23B-6.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The Federal Arbitration Act originally appeared on NJ Family Issues on November 27, 2011.

“Arbitration is . . . ‘favored . . . as a means of resolving disputes[.]‘” Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148 (App. Div. 2008) (quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002)). “The affirmative policy of this State, both legislative and judicial, favors arbitration as a mechanism to resolve disputes.” Alfano, supra, 393 N.J. Super. at 575. Our jurisprudence and public policy favor alternative dispute resolution and are consistent with our view that “[l]itigation ought to be a last resort, not a first one.” Billig v. Buckingham Towers Condo. Ass’n, 287 N.J. Super. 551, 564 (App. Div. 1996).

A strong public policy favors arbitration as a means of dispute resolution and “‘an agreement to arbitrate should be read liberally in favor of arbitration.’” Angrisani, supra, 402 N.J. Super. at 148 (quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993)); see also Bruno v. Mark MaGrann Assocs., 388 N.J. Super. 539, 545 (App. Div. 2006) (citing Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 617 (App. Div.), certif. denied, 149 N.J. 408 (1997)). “[D]oubts concerning the scope of arbitrable issues must be resolved in favor of arbitration, over litigation.” Alfano, supra, 393 N.J. Super. at 576. “An agreement relating to arbitration should thus be read liberally to find arbitrability if reasonably possible.” Jansen v. Salomon Smith Barney, Inc., 342 N.J. Super. 254, 257 (App. Div.), certif. denied, 170 N.J. 205 (2001).

Under both federal and state law, “‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 655 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409, 1417 (1960)). Therefore, “a ‘court may not rewrite a contract to broaden the scope of arbitration[.]‘” Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 132 (2001) (quoting Yale Materials Handling Corp. v. White Storage & Retrieval Sys., Inc., 240 N.J. Super. 370, 374 (App. Div. 1990)). “[A] party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration[.]” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S. Ct. 1920, 1925, 131 L. Ed. 2d 985, 994 (1995).

The proponent of arbitration has the burden to establish the existence of an agreement to arbitrate. “Although arbitration is traditionally described as a favored remedy, it is, at its heart, a creature of contract.” Kimm v. Blisset, LLC, 388 N.J. Super. 14, 25 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007). “[T]he duty to arbitrate . . . [is] dependent solely on the parties’ agreement.” Cohen v. Allstate Ins. Co., 231 N.J. Super. 97, 101 (App. Div.), certif. denied, 117 N.J. 87 (1989). The determination as to whether such a duty exists “rests solely on the parties’ intentions as set forth in the writing.” Martindale, supra, 173 N.J. at 92. Moreover, “an arbitration clause may be modified or superseded.” Wein v. Morris, 194 N.J. 364, 376 (2008); McKeeby v. Arthur, 7 N.J. 174, 181-82 (1951).

In determining whether a particular dispute is encompassed by an arbitration provision, as in construing any other contractual provision, a court’s “goal is to discover the intention of the parties[,]” which requires consideration of the “contractual terms, the surrounding circumstances, and the purpose of the contract.” Marchak, supra, 134 N.J. at 282; see also Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 337-38 (App. Div.), certif. denied, 188 N.J. 353 (2006). In making this determination, ordinary contract principles apply. Singer v. Commodities Corp., 292 N.J. Super. 391, 402 (App. Div. 1996).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

The proponent of arbitration has the burden to establish the existence of an agreement to arbitrate originally appeared on NJ Family Issues on April 17, 2011.

N.J.S.A. 2A:23B-22 provides, “After a party to an arbitration proceeding receives notice of an award, the party may file a summary action with the court for an order confirming the award, at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 20 or 24 of this act or is vacated pursuant to section 23 of this act.”

N.J.S.A. 2A:23A-13 provides, in pertinent part that, “The award shall be vacated on application of a party…if the court finds that the rights of the party were prejudiced by…[3] in making the award the umpire’s exceeding their power or so imperfectly executing that power that a final and definite award was not made…[5] [and] the umpire’s committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.”

New Jersey case law strictly limits the circumstances where the trial court may modify, correct or vacate an arbitration award. The State Supreme Court set forth the standard of review in Tretina v. Fitzpatrick & Assocs. 135 N.J. 349 (1993). The majority opinion adopted Chief Justice Wilentz’s concurring opinion from Perini Corp. v. Greate Bay Hotel and Casino 129 N.J. 479 (1992). “Basically, arbitration awards may be vacated only for fraud, corruption or similar wrongdoing on the part of the arbitrators.” Tretina at 358. The Tretina court acknowledged, “in most cases the Chief Justice would not vacate an award even though it might be based on a mistake of law.” Chief Justice Wilentz in Perini contended “Whether the arbitrators commit errors of law or errors of fact should be totally irrelevant. The only questions are: were the arbitrators honest and did they stay within the bounds of the arbitration agreement?” Perini at 519.

N.J.S.A. 2A:23B-23 was adopted in 2003. Since then, courts have readily adopted the Chief Justice’s standard from Tretina. Courts have recognized, “[the 2003 Act] continues our states’s long-standing policy to favor voluntary arbitration as a means of dispute. In other words, the same principles that governed judicial review of arbitration awards prior to the 2003 Act apply to such review of awards under that act.” Block v. Plosia, 390 N.J. Super. 543, 551 (App. Div. 2007). The standard adopted in Tretina has been applied to arbitration decisions challenged under N.J.S.A. 2A:23B-23. See Manger v. Manger, 417 N.J. Super. 370, 375-77 (App. Div. 2010).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

New Jersey case law strictly limits the circumstances where the trial court may modify, correct or vacate an arbitration award originally appeared on NJ Family Issues on April 13, 2011.