In Minkowitz v. Isreali, 433 N.J. Super. 11 (App. Div. 2013) the Appellate Division discussed the limitations surrounding the same person acting as both a mediator and arbitrator.
Although mediation and arbitration both allow for resolution of disputes outside the court with a third-party neutral, the Appellative Division concluded the differences in the role of a mediator versus an arbitrator are in conflict. The Appellate Division determined that because a mediator may become privy to party confidences in guiding litigants to a mediated resolution he or she cannot thereafter retain the appearance of a neutral factfinder necessary to conduct a binding arbitration proceeding. An arbitrator must maintain confidence in the integrity of the process. The Court found that if the same person acts as a mediator, obtains party confidences or offers opinions on the issues in dispute, a conflict arises were he or she then switches roles to act as an arbitrator making the final call. The Court notes this is concern is even more problematic when arbitrating matrimonial disputes between already “suspicious adverse parties.”
However, the Appellate Division did note that in the family law context, it could envision parties agreeing in writing to allow one person to perform these roles regarding separate issues; for example, mediation of custody matters and arbitration of financial issues. Thus, absent a specific agreement clearly defining the scope of the same person acting as both a mediator and arbitrator, dual roles are to be avoided.
For questions regarding mediation, arbitration or any other family law related issue, please contact the attorneys of Ulrichsen Rosen & Freed LLC. Our firm is focused exclusively on the practice of family law and serves clients throughout New Jersey including clients residing in Mercer County, Somerset County, Hunterdon County, Burlington County and Middlesex County.