By Marshall L. Gates, Esq.

     Mandatory non-binding arbitrations of civil cases are an important part of the civil trial practice in Superior Court in New Jersey.

     Arbitrations are mandated by Rule of Court 4:21A and must include all actions in Track I, II, and III except those that may have been unsuccessfully mediated earlier in the process. These may include all types of civil actions including automobile, personal injury, lemon law, commercial and contract matters

   Arbitrations are scheduled automatically by the Court staff after the Discovery End Date. Since the onset of the Covid-19 pandemic, arbitration proceedings are conducted remotely in most counties, but some counties have resumed in-person appearances.

   To provide balance, there should be both plaintiffs and defense counsel serving as arbitrators. It is important for plaintiffs' attorneys to serve as arbitrators to avoid a perception that there are too many defense lawyers serving in those roles. NJAJ members should seek to become arbitrators.

   When an arbitration is scheduled, the parties are mandated to submit a three-page Arbitration Statement. The first page of the Statement should contain the caption, the name of the party represented and whether it is the plaintiff or defendant.

   Parties can attach exhibits, but for the ease of the arbitrator, they should not be overburdensome. For instance, in a typical automobile accident case, a police report and any liability experts are necessary as well as the medical expert witnesses who are expected to testify. However, some attorneys submit voluminous medical records without highlighting the salient points, These records should be carefully reviewed by counsel and only the most important parts should be submitted, such as the operative report. Nurses’ notes and laboratory reports are usually not necessary.

   Counsel should dress appropriately as though appearing in the courthouse.

   Arbitrators are experienced attorneys, and basic hornbook law need not be recited as you can assume that the arbitrator is familiar with the law and the commonly used Requests to Charge. In unusual cases, however, it may be  helpful to recite applicable statutes and case citations.

   Arbitrations are conducted on Zoom or by conference call and although parties and witnesses are entitled to testify, remote and virtual arbitrations are usually abbreviated without any witnesses. However, any witness who wishes to testify is entitled to do so, particularly as to current physical complaints in a personal injury case.

   Some arbitrators ask counsel for the parties if they wish to disclose any demands or offers so that the award can somewhat account for the thoughts of those who know the case best. Arbitrators can make an award of whatever is deemed appropriate and just regardless of the demand and offer.

   The arbitrator is mandated to announce the award in front of the parties. However, on Zoom, this is not always feasible. Although the practice is evolving, most arbitrators will reserve the decision, write it up in some detail after the proceedings, and forward the Report and Award to counsel later in the day or the following day, while filing it with the Court at the same time.

   The Rules provide that counsel for the parties are to sign a receipt of the Arbitration Report and Award. However, with remote proceedings, this is not feasible and most arbitrators will ask permission of the attorneys to sign the Acknowledgement of Receipt for them and this is freely granted. The arbitrator must note in the Report that the attorneys gave consent to signing on their behalf.

   Most arbitrations do not result in a final settlement. Approximately 80% to 90% of arbitration awards lead to a Notice of Trial de novo being filed,  which has the effect of a rejection of the award. If either party files a Notice of Trial de novo within 30 days, the award is not final and the matter is placed on the trial list. Nevertheless, it is a guideline for settlement because this may be the first time that a knowledgeable, independent person looks at the case and this may tend to soften the negotiating positions of the parties and facilitate a settlement.

   Without arbitrations,  many plaintiffs and defendants have extremely hardened positions on settlement. The thoughts of a neutral arbitrator, however, often help to bring the parties together.

   Indeed, the whole concept of arbitration is to help facilitate settlements. Counsel should be cautioned that arbitrations are not mediations, and they are not settlement conferences, but they can often serve similar functions.