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.

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.

Indubitably, a mediator conducting himself pursuant to the UMA must be, like Caesar’s wife, above suspicion. See Isaacson v. Isaacson, 348 N.J. Super. 560, 575 (App. Div.), certif. denied, 174 N.J. 364 (2002). However, illusory or metaphysical doubts about the performance of a mediator’s services will not suffice to engender an erosion of confidence in the product of such process.

The advent of mediation and other alternative dispute resolution methods as tools to assist parties in resolving their disputes as early as possible and with the least amount of financial and emotional strain is an admirable and worthwhile effort of the court system. Ultimately, however, in an adversarial system with limited resources, the success of mediation is dependent on the good faith, reasonableness and willingness of the litigants to participate. Many are able to do so successfully. However, litigants are not fungible. For one reason or another, some are simply not good candidates for case resolution through good-faith alternative dispute resolution methods such as mediation.

[Lehr v. Afflitto, 382 N.J. Super. 376, 398 (App. Div. 2006).]

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

Illusory or metaphysical doubts about the performance of a mediator’s services will not suffice to engender an erosion of confidence in the product of such process originally appeared on NJ Family Issues on February 8, 2011.

“Mediation is now an accepted process in the resolution of family disputes[.]” Lerner v. Laufer, 359 N.J. Super. 201, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003). It is understood that “[a] mediated divorce settlement may well look substantially different on the same facts than would such a settlement hammered out in adversarial proceedings.” Ibid. In light of that understanding, “court[s] daily approve[] [divorce] settlements upon the express finding that it does not pass upon the fairness or merits of the agreement, so long as the parties acknowledge that the agreement was reached voluntarily and is for them, at least, fair and equitable.” Id. at 217.

The determination of whether a mediated settlement agreement is fair and equitable is accomplished through considerations “such as the adequacy of the agreement at inception, the presumed understanding of the parties at that time, . . . the manner in which the parties acted and relied on the agreement as well as the . . . principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement.” Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004).

If a marital “settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside.” Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.), certif. denied, 137 N.J. 165 (1994). Accordingly, absent “unconscionability, fraud, or overreaching in the negotiations of the settlement,. . . no legal or equitable basis exists to reform the parties’ property settlement agreement.” Miller v. Miller, 160 N.J. 408, 419 (1999).

In Miller, wife claimed she “did not have the requisite information to make an informed decision regarding her waiver of the restricted stock.” Id. at 418. There, wife had been represented by two lawyers specializing in family law, was advised by an accountant, and had told the trial court she understood the agreement and was not rushed into signing it. Pursuant to the terms of the agreement, wife received $1,000,000 in equitable distribution, plus alimony, and a share of husband’s pension. Id. at 418-19. The Court therefore held there was no basis to reform the agreement. Id. at 419.

By contrast, where the attorney who mediated the parties’ settlement was related to husband, the parties did not have independent counsel, and wife had no idea what the family’s finances were, we found wife’s “interests were not properly or adequately addressed in the agreement” and ordered modification. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992). A settlement agreement was also found unconscionable “based on the totality of the circumstances” where wife was not represented by counsel, at husband’s urging, wife had no experience in financial matters, and the terms of the agreement clearly did not reflect the stated intent of a fifty-fifty split of the marital estate. Addesa v. Addesa, 392 N.J. Super. 58, 69, 72-73 (App. Div. 2007). In Addesa, new facts came to light after the property settlement agreement was executed that showed the valuations used for some of husband’s assets were inadequate. Id. at 68.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Courts daily approve divorce settlements upon the express finding that it does not pass upon the fairness or merits of the agreement, so long as the parties acknowledge that the agreement was reached voluntarily and is for them, at least, fair and equitable originally appeared on NJ Family Issues on February 8, 2011.

Settlement of litigation ranks high in the pantheon of public policy. This is particularly true in matrimonial matters, where settlement agreements, being “essentially consensual and voluntary in character[,] . . . [are] entitled to considerable weight with respect to their validity and enforceability” in equity, as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J. 363, 370-71 (1977)); see also Lepis v. Lepis, 83 N.J. 139, 153-54 (1980); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960).

“`[S]eparation 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) (quoting Gordon v. Gordon, 675 A.2d 540, 544 (Md. 1996)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). Although “incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity.” Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004).

In Ocean County Chapter, Inc. of Izaak Walton League of America v. Department of Environmental Protection, 303 N.J. Super. 1, 10 (App. Div. 1997), the court noted:

Settlements permit parties to resolve disputes on mutually acceptable terms rather than exposing themselves to the uncertainties of litigation. “Settlements also save parties litigation expenses and facilitate the administration of the courts by conserving judicial resources.” Consequently, settlements are generally upheld absent clear and convincing evidence of fraud or other compelling circumstances.

[Ibid.]

In AT&T Corp. v. Township of Morris, 19 N.J. Tax 319, 322 (Tax 2000), the Tax Court listed as other compelling circumstances “mutual mistake, undue haste, pressure or unseemly conduct in settlement negotiations.” In Liguori v. Allstate Insurance Co., 76 N.J. Super. 204, 211 (Ch. Div. 1962), the Chancery Division noted, “`[i]t is a matter of common knowledge that fair and reasonable settlements can generally be made at much less than the financial burden imposed in litigating claims.’” Ibid. (quoting Alford v. Textile Ins. Co., 103 S.E. 2d 8, 12 (1958)).

Thus, settlements — the parties’ choice of the least unfavorable alternatives — occur for many reasons other than certainty of result. Settlements are made to obviate the pressures of litigation, to avoid the expense of counsel fees, and to avoid the cost and delay of appeals. In this case, the parties themselves expressed another irresistible reason, a non-economic reason, to settle: to spare their seven children the heartbreak of having their innermost feelings about their parents — even if reviewed in camera — forensically analyzed. The MSA appears designed, in part, to laudably change the destiny of the parties’ children so that such fortune is not eroded by

marital difficulties and discords between the parties. These dissensions, through want of mutual forbearance and the exercise of a spirit of forgiveness, are prolonged to a degree that promises permanent desolation to family that was once a happy one; and that bids fair to entail a heritage of frustration, ambiguity of loyalty, and unhappiness upon the children, whose happiness and welfare both parents claim to be striving.

[Quinn v. Johnson, 247 N.J. Super. 572, 580 (Ch. Div. 1991).]

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

Settlements are generally upheld absent clear and convincing evidence of fraud or other compelling circumstances originally appeared on NJ Family Issues on February 8, 2011.

You got married. Everyone was happy. Then, it did not work out. You decide to divorce. Now, the family gets involved. What a mess!

Read:

1. Lawyer Sues Former Son-in-Law Over Marital Cheating

2. Ex-Son-in-Law Denies Agreement to be Faithful to Wife

3. My Father In Law Is An Asshole, er Attorney!

4. Chicago Lawyer Sues Ex Son-in-Law over Infidelity

Perhaps, Mediation or the Collaborative Divorce process are MUCH better options.

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

Divorce is messy originally appeared on NJ Family Issues on February 4, 2011.

Judiciary Implements Statewide Child Welfare Mediation Program

In November 2009, the Judiciary began statewide implementation of its child welfare mediation program for cases of abuse and neglect, termination of parental rights and kinship legal guardianship.

Child welfare mediation brings together all of the parties in a case to work with a trained mediator in a non-adversarial setting that fosters the exchange of information and ideas to identify and address the best interest of the child or children in the case. Mediation participants include parents and their attorneys, the child’s appointed law guardian, a deputy attorney general to represent the state, a court-appointed special advocate, a DYFS case worker and supervisor, and resource family members or relatives.

Begun in 2005 in 10 vicinages, the program was evaluated carefully before being approved for statewide implementation. Early results show that mediation produces high settlement rates, helps parents understand their situation more clearly, permits parties to develop creative solutions, produces a higher rate of parental compliance with visitation and with accepting and participating in services and saves court time. Mediation gives the parties who are involved better access to the courts and a more effective method to provide the best possible outcome for the children.

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

Child Welfare Mediation Program originally appeared on NJ Family Issues on December 15, 2010.

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

A British approach to fostering mediation originally appeared on NJ Family Issues on December 13, 2010.

To read about my Confidential Mediation Services, go HERE.

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

Mediation is comming to television in a new drama series — an update originally appeared on NJ Family Issues on November 15, 2010.