N.J. SUPERIOR COURT, APPELLATE DIVISION

Minkowitz v. Israeli

FAMILY LAW

New Jersey Law Journal

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Parties who agree to submit their matrimonial disputes to binding arbitration may thereafter opt to mediate certain disputes without invalidating an agreement; however, arbitrators may not act as mediators and then resume their role as arbitrators.

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  • Patrick Westerkamp. Esq.

    Neutrals who are sufficiently brave to participate in "Arb-Med" are well advised to prepare a protocol to avoid the problem addressed in Minkowitz. It might read:

    [Arbitrator Name], who has been appointed as arbitrator of __________ between ___________ and _____may conduct a mediation in this matter. (1) In her capacity as mediator, she may receive confidential communications from the parties ex parte. Some such information may not be admissible in the arbitration, if it goes forward. (2) The mediation shall be conducted in accordance with the Uniform Mediation Act as enacted in New Jersey. (3) If the matter is not fully resolved, the mediator is empowered to proceed with the arbitration hearing, unless she elects not to resume this authority, or unless either party objects to her resumption of arbitral authority (4) The fact that arbitrator [Name] presided as mediator shall not provide any basis to seek her disqualification as arbitrator by any court of competent jurisdiction, or by any agency that may have administrative oversight of this matter. (5) Also, the fact that the arbitrator presided as mediator shall not provide any basis for the award to be vacated or modified, and the parties agree not to seek vacation or modification, nor to oppose confirmation of the award on that ground.

    While this protocol should provide after-the-fact protection, neutrals and advocates should remember that Arb-Med presents ethical dilemmas for all concerned.

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