Template for Proposed Consent Order for Arbitration: CVID-19 Alternative Settlement Process

_______________________________

_____________________, SUPERIOR COURT OF NEW JERSEY

FAMILY PART - CHANCERY DIVISION

____________ COUNTY

Plaintiff,

v. DOCKET NO.: FM-___________

______________________,

Defendant Consent order for Arbitration

_______________

The within matter coming by before the court jointly by the law firm of
______________________, counsel for plaintiff ( _____________ Esq appearing) and by the
law firm of ____________________, counsel for defendant ( ____________________ Esq
appearing) and both parties having given their informed consent to remove their pending matter
from the court’s docket and submit same to binding arbitration on all issues set forth in this
consent order and the court having read the pleadings and other submissions in this matter and
for good and other consideration,

It is on this ____________ day of _______________ 2020, Ordered and Adjudged, in

accordance with the consent of the parties as follows:
INFORMED CONSENT TO ARBITRATE, FINALITY OF PROCEEDINGS & WAIVER

OF RIGHTS BY BOTH PARTIES

The parties, after full and complete discussions with their respective counsel, knowingly,

voluntarily and willingly elect and agree to submit to binding arbitration the resolution of all

financial issues involved in the dissolution of their marriage by one arbitrator. The issues to be

addressed in arbitration shall include all equitable- distribution claims, alimony, child support,

health insurance, life insurance, all child-related expenses (including, but not limited to, post

high-school education, unreimbursed healthcare costs, child care, extracurricular activities and

their expenses), allocation of financial responsibility for counsel and expert fees, claims and

credits allegedly owed, expert fees and arbitration costs. Each party has received the advice of

counsel and has been fully made aware of his or her right not to enter into this arbitration and

have all of these issues in their matter brought to completion by a family part judge sitting in the

Superior Court of New Jersey, Chancery Division, Family Part, ________ County. The parties,

after discussing the issue of the submission of all claims to arbitration, knowingly, freely and

voluntarily waive their right to a full and complete hearing before the Superior Court of New

Jersey, Chancery Division, Family Part _______ County and to have all issues resolved in

arbitration.

This Consent Order shall constitute a formal waiver, by both parties, of their right to trial before

a superior court judge in the family part of the court system and to appeal or seek review by the

court of any determination by a superior court judge’s rulings, except as specifically provided

herein below. The parties' waiver of their right to trial and to appeal or review by the superior

court (except as expressly provided herein), is given freely, voluntarily and is without any threat

of coercion or duress. Neither party shall have the right or power to revoke his or her consent to
this agreement to arbitration any of the issues listed above without the express written consent of

the other party, which requirement shall be in writing.

The parties have selected ___________________, Esq. as their arbitrator with regard to all issues

set forth above.

The initial retainer for the arbitrator’s involvement is ________________, which shall be paid

for by the parties with Husband paying ___ % of same and Wife paying ____ % of same; which

payments shall be made promptly so as to permit the arbitrator to commence work on their

behalf.

As the matter proceeds through the arbitration process, the arbitrator may require additional

payments to be made by the parties for his services, which payments shall also be made promptly

by both parties, with husband paying __ % of same and wife paying __ % of same.

In the event, either or both parties fail to promptly make his / her payment timely, the arbitrator

shall have the right to stop work on the matter until the issue of payment is resolved. If not

resolved promptly, either counsel or the arbitrator shall have the right to petition the court for the

release of money for the payment of his fees or to compel either or both parties to make

payment; which payments shall be subject to reexamination by the arbitrator at the conclusion of

the arbitration matter.

If ____________________, Esq. declines his appointment or is unable to serve at any point in

the future, the parties shall agree, in writing, upon a substitute Arbitrator. If the parties are unable

to agree in writing to a substitute Arbitrator within 14 days of notice of the previously agreed

upon Arbitrator's refusal or inability to serve, then they shall each submit three names to the

court and the court shall select the Arbitrator. Any Arbitrator so appointed by the court shall
serve with the same powers pursuant to this Consent Order as if the Arbitrator were specifically

designated by the parties.

The parties confirm that prior to accepting the appointment, the Arbitrator shall, after making

reasonable inquiry, disclose to all the parties to this Consent Order any known facts that a

reasonable person would consider likely to affect the impartiality of the arbitrator in the

arbitration proceeding, including, but not limited to: (a) A financial or personal interest in the

outcome of the arbitration proceeding; and/or (b) An existing o past relationship with any of the

parties to the Consent Order to arbitrate, their counsel or representatives, a witness, or other

Arbitrators. The Arbitrator has a continuing obligation to disclose to all parties to this Consent

Order any facts that the Arbitrator learns after his/her appointment that a reasonable person

would consider likely to affect his/her impartiality as the Arbitrator.

In the event it is later determined that the Arbitrator failed to disclose information required by the

above paragraphs of this Consent Order, upon timely objection by a party, the court may vacate

any award ruling of the Arbitrator or appoint an alternate Arbitrator.

In the event the Arbitrator makes full disclosure as required by this Consent order and a party

fails to object within a reasonable time after discovery of the nondisclosure of a material fact

related to the impartiality of the arbitrator, the party receiving such information shall be held to

have waived any right to object to the designation of the Arbitrator on the grounds so related.

By consenting to be bound by this Consent Order, all parties to this Consent Order hereby waive

any right to object to the designation of the Arbitrator based on any disclosures made by the

Arbitrator as of the date of this Consent Order.

Notwithstanding the preceding waiver, if at any time it is determined that the Arbitrator has a

known, direct, and material interest in the outcome of the arbitration proceeding or a known,
existing, and substantial relationship with either party, the Arbitrator may not serve as Arbitrator

and any award entered by the Arbitrator shall be vacated by the court upon application.

The Arbitrator has not served, and shall not serve, unless otherwise agreed, in another capacity in

this matter being arbitrated.

If it is determined that the Arbitrator has served in such a matter, then any award entered by the-

Arbitrator shall be vacated by the court upon application ( meaning the arbitrator cannot switch

between the role of an arbitrator and mediator and then switch back to arbitrator).

The parties acknowledge and understand that the Arbitrator, prior to accepting appointment, shall

be provided with a copy of this Consent Order.

By thereafter accepting appointment, the Arbitrator shall accept all terms of this Consent Order

and hall sign a copy of this Consent Order indicating the Arbitrator's acceptance of the terms

f the Arbitrator's appointment.

The Arbitrator is not competent to testify, and may not be required to reduce records as to any

statement, conduct, decision, award, or ruling occurring during the arbitration proceeding, to the

same extent as a judge of a court of this state acting in judicial capacity.

The Arbitrator shall be immune from civil liability to the same extent as a judge of a court of this

state acting in a judicial capacity. The immunity afforded by this section supplements any

immunity pursuant to any other protections afforded the arbitrator under any other laws. The

failure of an Arbitrator to a disclosure required by this Consent Order does not cause any loss of

immunity pursuant to this section, as to other actions engaged in by him / her.

The rules governing the arbitration shall be conducted pursuant to and in accordance with

N.J.S.A. 2A:23B-1 et seq. except as set forth hereunder.

The decision of the arbitrator shall be determined in accordance with the laws of the State of

New Jersey (statutory and case authority) as applied to the issues and facts presented to him for

resolution, and the decisions of the arbitrator shall be confirmed in accordance with New Jersey

law by an appropriate application to the Superior Court of New Jersey and shall be enforced by

the Court and confirmed, without limitation on the Court's remedies. Both the arbitrator's final.

award and any interim decisions, upon confirmation by the Court, shall have all rights attached

to a Final Judgment or Court Order, including but not limited to rights of appeal and

enforcement.

The legal principles of R. 4:50-1 and general principles pertaining to modification of Judgments

or Orders will be fully applicable to the arbitrator's decision once incorporated into a Final

Judgment or Court Order.

The arbitrator's decision shall be pursuant to law and equity and shall make specific findings of

fact and shall be obligated to render a written decision as to all issues presented to the parties no

later than thirty (30) days after (1) the arbitration hearing is concluded; (2) his receipt of

complete copies of all of the transcripts referred below and (3) receipt of written summations of

both counsel.

With respect to discovery and any other issues to be addressed prior to or during the

hearing dates, the arbitrator shall read all papers submitted on the issues and entertain

oral arguments prior to rendering a decision on the particular issue(s) presented. At the

conclusion of the arbitration matter (mor earlier if permitted by the arbitrator) the prevailing

party may file a summary action with the Court for an expedited Order to confirm any counsel

fee or expert fee award entered.

Counsel for the parties shall coordinate with the Arbitrator and agree upon a time line for the

completion of all discovery, including the completion of updated CIS forms, completion and

production of any and all expert reports, including but not limited to vocational experts, forensic

accounting experts, real estate appraisal experts, rebuttal expert reports and depositions of

experts and parties. The arbitrator shall confirm the timeline in writing with both counsel.

The parties shall exchange and provide to the arbitrator written statements of all claims for trial

purposes, and the legal and factual issues and relief sought, before the commencement of the

arbitration trial. All trial exhibits shall be pre-marked and exchanged no less than ___ days in

advance of the commencement of the arbitration trial.

All stipulations shall be submitted to the Arbitrator no less than ___days in advance of the

Arbitration trial.

Arbitration shall commence immediately thereafter based upon the availability of the arbitrator,

parties and counsel.

Counsel for the parties shall have subpoena power consistent with the powers permissible under

the New Jersey Court Rules for the issuance of subpoenas in connection with divorce

proceedings and the arbitrator shall have the power to assess penalties, fines or other relief

against a properly served subpoenaed party to appear and/or produce documents, and the

arbitrator's determination in this regard shall be enforceable on application to the Superior Court

of New Jersey. Similarly, the arbitrator shall have the power to assess penalties, fines or other

relief against a party for his / her failure / refusal to timely turnover documents received by

counsel through a subpoena. All disputes pertaining to discovery and the disclosure of material

relevant to the proceeding shall be determined by the arbitrator.

The parties shall have the power to serve Notice in Lieu of Subpoena, pursuant to R. 1 :9-2, and

the arbitrator and the Court shall have the power to enforce such notices and/or decisions of the

arbitrator. The arbitrator shall have the power to adjudicate and enforce disputes and

disagreements concerning discovery. The New Jersey Rules of Evidence shall be controlling

(unless relaxed by the arbitrator after the written agreement of both counsel).

The arbitration shall be scheduled in accordance with the directions of the arbitrator and the

schedules of both counsel, experts and witnesses, and the parties. Counsel for the parties and

witnesses shall be considered to be on trial, and all should be able to represent to any Court of

this State that they are on trial and assigned out for trial in order that they not be obligated to

leave the arbitration to attend any other court proceeding. They may represent that they are

unavailable during the time they are actively involved in the arbitration. The parties agree to

attend any pre-trial arbitration conference with the arbitrator so that he can set the ground rules

for said arbitration, and the parties shall be further obligated to obey them. The arbitrator shall

have the authority to proceed with the arbitration proceeding if either party fails to proceed or

participate in the action in good faith. All arbitration proceedings shall take place at the offices of

the arbitrator, unless all agree otherwise.

A court reporter shall be hired to memorialize the proceedings. The cost for the shorthand

reporter shall be paid from marital assets without prejudice unless the parties agree to an

alternate method of payment. The transcripts of all of the proceedings shall be the official record

of the arbitration hearing.

Where reasonably required by the circumstances, a party may apply to the arbitrator for an order

granting any provisional remedy or other relief that may be obtained from the Superior Court of

New Jersey or any other court of competent jurisdiction.

The arbitrator shall have authority to act on any and all applications for pendente lite or interim

relief. Notwithstanding this provision, in the event the arbitrator is unable or unavailable to act,

the party seeking pendente lite relief may make such · application to the Court. Any such

temporary interim order shall be subject to de nova review and/or modification by the arbitrator

upon application of either party.

A party seeking pendente lite relief or any other proceeding before the arbitrator shall proceed in

accordance with this Consent Order. The party shall request pendente lite relief or a hearing by

notifying the arbitrator and all other parties of the request by telephone, facsimile, and/or

overnight delivery of a written notification of request in the form of a motion with supporting

Certification(s) in accordance with the New Jersey Court Rules for pendente lite relief. The

arbitrator shall notify the parties of the date, time, and place of the hearing for pendente lite

relief.

The arbitrator may grant an award for provisional remedies , including procedural rulings and

interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration

proceeding and to promote the fair and expeditious resolution of the controversy, to the same

extent and under the same conditions as if the controversy were the subject of a civil action.

The arbitrator may, at a party's request, direct any party to take such interim measures of

protection as the arbitrator considers necessary in respect of the subject matter of the dispute.

The arbitrator may require any party to provide appropriate security in connection with interim

measures.

Any determination -reached before a final arbitration award shall be considered pendente lite as

provided for in this Consent Order. All pendente lite orders hall remain in full force and effect

until the arbitrator's final decision is rendered, subject o an application to the arbitrator by either
party based upon appropriate legal principles, including but not limited to "changed

circumstances" of existing orders in accordance with New Jersey law. A timetable for

termination and/or modification of any pendente lite order and implementation of the arbitrator's

decision shall be determined by the arbitrator. The arbitrator shall have the right to enforce

any/all pendente lite orders.

The findings, holdings and conclusion? of the arbitrator, ren9ered at the conclusion of the

arbitration hearing, shall be final, conclusive and binding, but subject to appellate review,

reconsideration or hearing as set forth herein.

Unlike statutory arbitration, N.J.S.A. 2A:i4-8 and N.J.S.A. 2A:24-9, wherein he award may be

vacated only upon certain discrete, limited grounds (corruption, fraud, evident partiality and so

on), the parties herein are agreeing to opt out of such stringent statutory requirements. Rather, the

parties have knowingly chosen to expand the scope of judicial review of the Arbitrator's award

and are specifically providing for such expansion in this Agreement. The parties agree that the

Arbitrator's award in this matter may be reversed for errors in the application of New Jersey law

and/or may be reversed for an abuse of his discretion. In this regard, the Husband and Wife agree

that the scope of appellate review in this matter shall be the same as if the Appellate Division of

the Superior Court of New Jersey were reviewing the decision of a Judge· of the Superior

Court who is sitting in the Family Part.

Either party may apply to the agreed upon Appellate ArbitrF1tor set forth herein for the vacation,

correction, supplementation, or modification of an award of the arbitrator within 25 days after

the award is served upon the applicant, or within ___days after service of. an award corrected or

supplemented by the Arbitrator pursuant to this Consent Order. Except when an allegation is

made that the award threatens harm to the child, the applicant may simultaneously seek
correction;··supplementation, or modification of an award for the reasons set forth in this

Consent Order, but only if such an application ad previously be􀯭n made to the Arbitrator. The

application shall be by summary proceeding if the arbitration proceeding had been conducted-

prior to any litigation being instituted; otherwise, the application shall be by way of notice of

motion.

The holding in Lepis v. Lepis and its progeny is in no way affected by this arbitration Order, and

the issue of changed circumstances may be addressed by a post-arbitration application as

permitted by the laws of the state of New Jersey. Except in the event of such change in

circumstances that could render an award of alimony, child support, or child custody subject to

modification as provided for in this Consent Order, a party shall waive his/her right to seek

vacation, modification, correction or supplementation of the award of the Arbitrator if said

application is not commenced as required by this Consent Order.

The award of the Arbitrator shall become final and shall be confirmed by counsel of the parties

in a written document titled "Consent Order Memorializing Arbitration Award". The document

shall memorialize the arbitration award and shall be signed by counsel for the parties o n l y -

Consent to Form.

A party who has failed to participate in an arbitration proceeding, after receiving proper notice of

said proceeding, shall have no right to seek vacation, correction, supplementation, or

modification of the award, except for modification of same as set forth in this Consent Order.

When considering an application for vacation, modification, correction or supplementation of an

arbitration award, a decision of the Arbitrator on the facts shall reviewed based on the standard

set forth herein t However, when the application to the court is to vacate the award pursuant to

the following paragraph of this Consent Order, he court shall make an independent de nova
determination of any facts relevant thereto, upon such record as may exist or as it may determine

in an expedited summary proceeding.

On the application of a party, the court shall vacate the arbitration award only if the court finds

that the rights of that party were substantially prejudiced by: (a) corruption, fraud, or misconduct

in or during the arbitration process; (b) Failure of the Arbitrator to disclose a conflict as required

under this Consent Order; (c) In making the award, the arbitrator exceeded his/her power or so

imperfectly executed his/her power that a final and definite award was not made and / or the

court finds that the award is unconscionable, given the factual or legal presentation during the

arbitration proceeding; or (d) Failure to follow the procedures set forth in this consent Order to

arbitrate, unless the party applying to vacate the award continued with the proceeding with notice

of the defect and without objection.

Upon denial of a motion to vacate the award, the court to which the application for that relief

was directed shall confirm the award.

The court may order the modification, correction, or supplementation of an arbitration award

upon application of a party only if: (a) There was a miscalculation of figures or a mistake in the

description of any person, thing or property referred to in the award; (b) The Arbitrator has made

an award based on a matter or issue not submitted to him and the award may be corrected

without affecting the merits of the decision upon the issues submitted; or ( c) The award is

unconscionable. Nothing in this paragraph shall be read to limit a party's right to oppose said

application to the court.

If the application to modify, correct, or supplement the award is granted, the court shall modify,

correct, or supplement the award to affect its intent and shall confirm the award as so modified,

corrected, or supplemented.
Upon denial o f a motion to modify, correct, or supplement the award, the court to which the

application for that relief was directed shall confirm the award. An application to modify,

correct, or supplement an award may be joined in the alternative with an application to vacate the

award.

The arbitrator may allocate the cost of all professional and/or expert fees incurred to either or

both party[s] in any percentage or amount the arbitrator deems acceptable at any stage of these

proceedings, including past fees paid. The cost of the arbitrator's retainer and fees and Court

reporter costs shall be advanced by the parties with husband advancing ___ % and Wife

advancing ___% without prejudice; however, the allocation of the cost of the arbitration,

including the arbitrator's fees and court reporter's costs shall be an issue at arbitration and shall

be determined by the arbitrator on a final basis.

It is understood that the parties are reserving any and all claims and defenses for an award of

professional fees in connection with the arbitration and the litigation leading up to the arbitration.

The arbitrator shall have the authority to grant professional fees both pendente lite and at the

conclusion of the hearing to either or both parties and their counsel.

_______________________________ __________________________________

________________________________ __________________________________
____________________________________

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