As I have recently retired from serving on the Superior Court for over twenty-one (21) years and have returned to private practice offering mediation and arbitration services, I believe it is incumbent upon me to share some thoughts and insights gained from my judicial experience relating to Alternative Dispute Resolution (ADR) as an option for case processing.

When I was appointed to the Superior Court Bench in January of 1987, I came to the position with a wealth of experience in dispute resolution as I was an advocate for clients in mediation and arbitration proceedings involving private and public sector labor disputes. For twenty (20) years, at different times in my career, I had represented labor unions and management clients in the mediation of labor contracts, the arbitration of police and fire disputes, and the processing of grievances up through and including binding arbitration.

Especially in sensitive matters, such as personnel matters, I learned to appreciate the ability of the parties to shape the outcome of their dispute by choosing a forum appropriate for its resolution. For example, if the parties sought to retain control over the impact a decision would have they could opt to submit the dispute to mediation rather than litigate. Mediation in such a case would be private and the results could be shielded from public scrutiny and would be treated as confidential. There would be no public record to be made and no unwanted publicity of the outcome. The advantages were obvious to parties who wanted to limit the outcome and confine the result to a specific workplace. The decision would be non-binding and thus, have no real precedential value.

On the other hand, if the parties wished to achieve a binding precedent in a public rather than private forum, they could litigate through an appropriate administrative agency process, if available, or file suit in a court of law in order to have the benefit of a binding decision with precedential value. Thus, by understanding the advantages and uses of a specific dispute resolution process and appreciating the nature of their dispute and their goals, the parties could contain the impact of their decision, if they wished, and limit public knowledge of their dispute and its outcome to serve their own interests. Labor disputes involving sensitive personnel matters were often left for resolution to less public arenas for these very reasons.

As my years of experience on the Bench increased, I began to see that there was a decided advantage to sophisticated litigants to employ ADR processes rather than use the Court's own adjudicatory process. First, the parties could select the hearer and decider, rather than have the judicial system assign the next available Judge to hear the case. Besides selecting the hearer, the parties could opt among various ADR alternatives, under Court Rule 1:40 including, mediation, and arbitration. By choosing the hearer and the process for decision making the parties became empowered to set about resolving their dispute in the most user friendly manner possible. This would instill confidence in the parties about the process of decision making and would increase the likelihood that they would accept the outcome. Thus, these attributes would often result in lower case costs (such as legal fees, loss of time from work and other collateral expenses) and would thereby make the initial selection of the dispute resolution process all the more important.

In addition to the desirability of resolving a sensitive dispute in a private rather than a public forum, counsel began to appreciate the advantages of private dispute resolution by having their own mediator or arbitrator available to them based upon their availability and the availability of their parties rather than having the judicial system with its limited number of Judges and its over burdened dockets determine the window of opportunity afforded for trial of the case. The parties and counsel working with a mediator or arbitrator could block out a sufficient period of time to expeditiously process a dispute to conclusion. Uninterrupted days of hearings could then become the norm rather than the exception and the entire case could be moved more rapidly to conclusion. Legal fees, witness fees and associated costs would become easier to manage and contain. As any trial attorney will tell you, having a sufficient length of uninterrupted trial time with no other matter competing for a Judge's attention is a real advantage for expeditious case processing. Further, as a Trial Judge, I encountered too many delays brought about by last minute in limine motions in cases that were not ripe to be litigated due to unresolved issues of discovery or evidence. The cases had been scheduled for trial by the Court's case management office due solely to the age of the case and its backlog status. As one may know, the New Jersey Judicial system seeks to process or clear the number of cases docketed in a given court year as well as intends to process and complete cases within stated time frames based upon the type and complexity of the cases. Private case processing, however, be it mediation or arbitration, is not driven by arbitrary goals of case clearance and aging, but is determined by the needs of the parties and counsel for expeditious and effective case processing. The availability of counsel and the parties and the resources to be dedicated to the hearing process set the schedule to achieve the ultimate decision. By having properly drawn agreements to mediate or arbitrate, and using competent counsel, the parties can achieve a meaningful result in an expeditious manner when employing an experienced mediator or arbitrator.

My perspective is shaped by my dispute resolution background before coming to the Bench and by my experience on the Bench hearing cases in the Family, Civil and Criminal Parts of the Court. My view is that the parties working with competent counsel are the best persons to select their hearer, and to choose the method for resolution of their dispute. To permit the court system with its limited judicial resources and its pressures of calendar clearance to define the window of opportunity for the trial of cases is unwise and can be expensive. Trial counsel should weigh carefully the advantages of litigating in a public forum vs the disadvantages of allowing the system's goals and objectives of case processing (i.e., to clear cases and reduce case aging) determine when and for how long their dispute can be heard. By choosing the process of Alternative Dispute Resolution best suited to their client's needs as permitted under R. 1:40, trial counsel will be benefiting their clients and limiting case costs. This appears to be the most efficient way to resolve a dispute given the circumstances of time, money and the limitations on judicial resources. I highly recommend that trial counsel consider the use of Alternative Dispute Resolution as permitted under R. 1:40 for cases currently on the docket in the Superior Court of New Jersey. By trial counsel choosing either mediation or binding arbitration in a private rather than a public forum the essential benefits of expeditious and economical case processing can be achieved and the goals and objectives of their clients can be secured.