NJLJ Reports: More Divorcing Couples Seek Arbitration, Mediation Amid Court Closures
By Suzette Parmley |
With the pandemic causing extensive backlogs due to shuttered courthouses, family law attorneys say they’re seeing more couples turning to mediation and arbitration to settle disputes and work out financial arrangements.
Trial uncertainty, stressed-out households, and rigid reporting requirements are fueling the uptick, the attorneys—two of whom are former judges—contend, as well as a need to save time, cost and, hopefully, heartache.
“Divorces are not more amicable. To the contrary—there is more stress as a result of the pandemic,” said Richard H. Weiner, managing shareholder at Aronsohn Weiner Salerno & Kaufman in Hackensack who wears both hats as a mediator and arbitrator, and also handles complex divorce litigation. “Now, not only do you have a situation where your kids are being schooled from home, but also your spouse is sitting next to you working remotely from home.
“I am looking at a heightened level of emotions resulting from this pandemic,” Weiner said. He added that the mediations “have stayed steady,” but “there is a heightened level of people who want to pursue resolution of their cases through the arbitration process.”
Businesswise, the percentage of clients pursuing the arbitration-mediation route versus going to court is up by at least 20% at Aronsohn Weiner, and at Pashman Stein Walder Hayden, also in Hackensack, lawyers say. At Brach Eichler in Roseland, it’s up by a third, that firm said.
Efficiency and having experts on hand—such as a mediator who’s an expert in real estate law to handle property settlements—are attractive to clients, said Carl Soranno, chairman of Brach Eichler’s family law service in Roseland.
And couples who need to adjust child support and alimony due to COVID-19-related job losses can keep costs down, as well as face less stringent reporting rules.
“We are advocating that clients seriously consider meaningful mediation and, if not, mediation and arbitration to get finality in the [existing] case,” said Soranno. “So a defendant can’t sit there and delay, delay, delay, or a payer on the other side of a motion can’t delay, delay, delay, waiting for the courts to just hear [their case].
“If it’s going to arbitration, dates are going to be set, hearings are going to get scheduled, and we’re going to get resolution,” Soranno said. “We have done that now quite a bit in the last three months. We are doing that more than going to court.”
Public vs. Private Meeting
Weiner said the finality of an arbitration is a huge benefit—one that’s being denied to splitting couples by the court closures.
“There’s been more arbitration because in arbitration, you get a final ruling,” Weiner said. “An arbitrator is like a judge, in that the parties are able to say they have finality, and it’s binding. The arbitrator sits in the shoes of a Superior Court judge in the Family Part.
“Mediation is nonbinding, where you’re making rulings as the arbitrator as if you were a Family Part judge, but in a private setting in comparison to a public setting. There is no public record with us [in mediation].”
Weiner, who’s one of the arbitrators that Brach Eichler has recently used, said the reasons for the surge in arbitration and mediation are twofold.
“One, there is concern as to when there will ever be trial certainty again, and two, I am finding litigants who have more reasons to want to stay out of the courtroom setting because of various cash components or other nefarious activity related to their business interests.” Weiner cited listing a personal expense as a business expense to get a tax benefit as an example. He said the financial stresses from the pandemic has encouraged creative recordkeeping.
“The arbitrator does not have the same reporting requirements to either the IRS or U.S. Attorney’s Office as a sitting family law judge has,” said Weiner.
Divorcing spouses “are being counseled by their attorney, ‘Hey listen, you need to look to doing this through arbitration rather than the courts because there is a concern for both you and your spouse over this activity.’”
Also, “we’ve had nesting situations where separating parties are in the same household, and many can’t get closure on their applications due to the backlog in the courts and only emergency applications being heard,” said Soranno, who has been working from home himself since mid-March, when Brach Eichler went fully remote.
As a result, “[d]efendants who prefer to delay a divorce or not get a divorce are taking advantage, while plaintiffs are having a harder time getting the relief they are seeking,” Sorrano said. “The situation favors the defendants who want the delay.
“That can be very frustrating for clients, particularly those who have seen a change in [economic] circumstance, such as losing their jobs and being forced to get unemployment, which constitutes a change of circumstance but we do not know if it’s going to be permanent or temporary,” added Soranno. “So there’s pressure on those receiving support because the ability to pay has been challenged.”
Working It Out on Zoom
Ronny Jo Siegal, chairwoman of the alternative dispute resolution practice of the family law department at Pashman Stein, said she’s seeing many couples holding off on filing papers.
“Many self-represented individuals are not proceeding [with a divorce] because they can’t afford to, or they feel their case has been harmed by the downturn in the economy and they want to wait it out,” said Siegal.
As a former Family Part judge in Bergen County until she retired in 2017, Siegal said courts have always favored parties going to arbitration and mediation.
“It was not only cost-effective for the parties, but it enabled courts that are so burdened with cases to obtain the assistance of the arbitrator and mediator to address the matters promptly,” said Siegal. “It also afforded the parties … expedient results. They didn’t have to wait [until] next month for their case to be called again.
“This has always been a compatible process and harmony between these groups,” said Siegal.
With the severe financial fallout from COVID-19, Siegal said, more couples are carefully mulling over their options.
“For one party, it may be an absolute need to get into court now to lower a support [number] or alimony to meet that economic reality. But the reverse is true for the other side of the aisle,” said Siegal. “Jointly, some parties can’t even afford to go to court to dissolve the marriage. They can’t afford to because they need the other party’s economic assistance.
“So rather than increasing the volume of arbitration and mediation matters, COVID may deter people from going forward,” said Siegal. “They want to wait it out until their lives get economically better.”
Weiner is seeing a similar pattern.
“There hasn’t been an onslaught of cases. There is a level of trepidation to move forward,” Weiner said.
“We’re seeing a lot of couples saying, ‘I have enough stress in my home, and with my husband or wife not leaving and working remotely from home. I think we’ll ride it out.’
“We’re seeing counsels with people often saying, ‘we’ll wait for the vaccine until I move forward,’ and ‘I don’t want to add to that pressure of a dual-edged sword right now with homeschooling and my spouse at home,’” observed Weiner.
The issue of how children should be schooled during the pandemic has become a big issue among couples on the brink of divorce, said Siegal.
“Parents need to make an immediate decision, and mediators can provide greater attention with a shorter time period to respond and address that as an issue,” said Siegal. “Arbitration and mediation can provide a prompt resolution.”
While it’s still early to know the long-term impact, one thing is clear: the pandemic has reshaped how family law is practiced, but not necessarily for the worse, say the attorneys.
“Family law has always relied upon compatible relationships between the professional and the client,” said Siegal. “We were all unsure without the ability to meet one on one if it would have a deleterious effect. There was the thought that we would not be able to do well unless we had our client in front of us.
“To the contrary, it has worked out very well,” Siegal said. “We have been able to navigate easily with the use of Zoom.”
Weiner predicts the courtroom experience is likely to change when the courts reopen.
“It will be different because there were times we would sit in a courtroom and 10 to 15 litigants were in the room, and you would wait your turn,” Weiner said. “I think those days of putting that many people in a small courtroom are over.”
‘Let’s Get This Done’
Siegal said she’s seeing more flexibility in the resolutions being hammered out among couples because of the pandemic’s uncertainties.
“Mediators, arbitrators and forensic accountants are trying to fashion remedies that enable parties to secure a divorce but also to return at a later point in time to see if a business is back on track and earnings have returned to what they were pre-pandemic,” she said.
Soranno said the number of divorce cases heading to arbitration and mediation as opposed to court is up 25% to 30% at Brach Eichler.
“I don’t think it’s going away anytime soon,” Soranno said of the current trend. “Even if we get back to normal, the court still has to deal with the huge backlog of cases before it can go back to normal.”
Soranno cited a recent example where a client just filed a motion, and the judge denied the motion because the issue needed a hearing to resolve.
“The client has come to us and said, ‘I can’t last. Let’s get this done. Let’s go to arbitration or he’ll [the spouse] never pay if he’s not made to pay.’”