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NJ Court Public Information Rules Amended

I have previously written about the proposed rules changes by the NJ Supreme court regarding public access to court records here and here. In a nutshell, we have an open and public court system.  Most (but not all) records of the court are public but are currently accessible only at the courthouse.  Justice Albin was charged with reforming these rules to reflect 21st century issues such as internet access and privacy.  As part of the overall rules changes approved by the Supreme Court, most of the recommendations of Albin’s committee were approved and will become effective September 1, 2009 along with other approved changes.  The formal rule is 1:38.  The modifications are as follows:

  • Closed or inactive account numbers and information are not considered to be private and thus do not need redaction.
  • The court may charge a fee to mass redact social security numbers in already existing records.
  • The obligation to redact confidential personal identifiers from documents submitted to the court applies to litigants and attorneys in all cases — and must certify same.
  • Financial records of guardians and incapacitated persons shall be confidential and available only to spouses, domestic and civil union partners, and family members of the ward to the third degree of consanguinity. The court thought that making them public would enable exploiting of the most vulnerable in our society.

It is unclear how quickly internet access for court records will occur given the fiscal realities of the state of NJ in 2009 — but the road has been laid out.

What does this mean to you?  Your records in the future (including potentially retro-actively) will be far more accessible to anyone who cares to see it.  Mediation is a confidential process, whether for a divorce. commercial dispute or family dispute.  If you want to keep your information from public view, mediate your divorce or dispute.  If you would like to discuss this further, feel free to contact me at 732-963-2299 or via my website.

Credit Card Industry in Disarray

Most credit cardholder agreements contain a provision that upon default, the dispute will go before an arbitrator (a private judge) for a decision.  As with home mortgages, many consumers in default on their debt will ignore the notices for the arbitration hearing.  The arbitrator then rules on the matter with whatever evidence has been presented.  Once an arbitrator rules in favor of the credit card company, the company can then sue in court to enforce the arbitration award.  These arrangements have come under criticism because consumers cannot negotiate these terms in the card holder agreements (it becomes a contract of adhesion).  Also, the credit card companies hire the arbitrator so the perception is that they work for the credit card company.

Now, the two largest players in the credit card arbitration market — National Arbitration Forum and the American Arbitration Association — have announced they are leaving the field.  NAF was sued by the Minnesota Attorney General’s office for failing to disclose ties to the collections industry.  Their departure from consumer arbitration is to settle that lawsuit (they admitted no wrongdoing).  AAA is waiting for new guidelines to be established (odd, given that AAA rules are widely used for arbitrations and they have long been considered industry leaders).  Meanwhile, the federal government is looking at the matter of mandatory arbitration clauses in consumer agreements.

I suspect the courts will now be overburdened with credit card default filings with such a huge void in the consumer credit arbitration market.  I mediate a good number of these cases for the NJ courts and most of them resolve.  Credit card companies would rather be paid and consumers would rather not have bank levies and wage garnishments done to them — plus pay the bank’s legal fees.  Anyone can voluntarily enter mediation at any time.  Keep that in mind should you find yourself in this situation.  The earlier cases are resolved, the less expensive it is for all parties.

NJ Supreme Court Allows Arbitration for Parenting Arrangements…with some Caveats

I previously have written about a New Jersey appellate decision in the case of Fawzy vs. Fawzy.  In that case, the appellate panel disallowed the use of binding arbitration to determine parenting arrangement for children in a divorce, arguing that the court can not delegate to others its own parental obligations of making sure things are done in the best interests of the children.  Arbitration is the use of a private judge to determine the outcome of a dispute.  It is optional for the parties.  Parties usually choose to arbitrate a matter because you can engage an “expert” judge who can render a decision far more quickly (and hopefully less expensively) than the court.  The disadvantage is that arbitration decisions are appeal-able only on very narrow grounds.

Last week, the NJ Supreme Court unanimously overturned the appellate panel’s decision, but added several caveats when arbitration is used in a parental setting.  The court held:

  • The constitutionally protected right of parental autonomy includes the right of parents to choose the forum in which to resolve their disputes over child custody and parenting time — including arbitration.
  • An agreement to arbitrate must be in writing or recorded and must establish that the parties are aware of and have knowingly and voluntarily waived their rights to a judicial determination. A record of documentary evidence adduced during the proceedings must be kept; testimony must be recorded; and the arbitrator must issue findings of fact and conclusions of law in respect of the award.
  • The arbitrator’s award is subject to review under the NJ Arbitration Act, except that judicial review is also available if a party establishes that the award threatens harm to the child.
  • Parental autonomy includes the right to submit any family controversy, including child-custody and parenting time issues, to a decision maker of chosen by the parents. The right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues between themselves, without state interference, does not evaporate when a marriage breaks down. It is only when the parents cannot agree that the court becomes the default decision maker. There is no basis to carve out of the right to parental autonomy the decision to submit child-custody and parenting-time matters to arbitration. Just as parents choose to decide those issues among themselves, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen. The right to arbitrate serves an important family value by allowing parents the opportunity to choose an arbitrator based on her familiarity with the family or her understanding of the values that the parents hold dear and have tried to follow in raising their child.
  • A guardian ad litem may not simultaneously or sequentially serve as an arbitrator for the parties.

This ruling gives parents a greater latitude in choices while still protecting the best interests of the children.