Modern A.D.R. Practice: Navigating Between a Rock and a Hard Place

Saturday, April 1, 1995

Modern alternative dispute resolution (“A.D.R.”) practice in New Jersey, as elsewhere, has been shaped by powerful, independent, and ongoing forces. The federal and state court systems, responding to overwhelming docket demands, increasingly have become receptive to arbitration, mediation, and other A.D.R. techniques. The business and consumer communities — and elected officials who are influenced by them — have lost patience with the cost, delays, and unpredictable outcomes of the civil court process. How does the current A.D.R. climate affect New Jersey lawyers and our clients? What risks and opportunities are presented by recent federal and state case law developments? Is there any room for creative lawyering in this burgeoning practice area? What are the malpractice pitfalls of A.D.R.? This article will discuss certain A.D.R. megatrends, touch on several “hot button” issues, and offer some pragmatic practice and resource tips to the initiated and not-so-initiated in the rapidly developing A.D.R. field.Trends and Issues in Private Arbitration
It is impossible to overstate the significance of changes that have occurred in the private arbitration field in the last decade. I will limit my discussion here to non-collective bargaining arbitration, i.e., arbitration of private contract disputes outside the labor field, and further will not cover statutorily mandated or court-directed arbitration. Typical arbitrable disputes within this article’s scope include employment agreements, consumer goods or services contracts, construction contracts, real estate contracts, landlord-tenant contracts, franchise agreements, and securities agreements.

Arbitration, one of the oldest forms of A.D.R., was a highly disfavored process at early common law. Judges resented subversion of their jurisdiction by “mere contract”, and generally refused to enforce arbitration clauses. The modern age of arbitration began in the 1920’s, with Congress’s passage of the Federal Arbitration Act (“FAA”), and prior or eventual passage of companion or uniform statutes in all fifty states and the District of Columbia. The FAA, as interpreted and enforced by the United States Supreme Court over the last ten years, has played a crucial role in arbitration’s development as A.D.R.’s most popular tool. New Jersey’s arbitration statute, in effect since 1923, has received parallel supportive treatment by the Supreme Court of New Jersey.

Parties who choose arbitration give up their rights of public trial and appeal for the presumed benefits of privacy, speed, lower cost, and finality of decision. As expressed in one New Jersey case, “it is axiomatic that a person cannot be compelled to arbitrate a dispute with another person unless there is mutual agreement to do so.” However, as interpreted and enforced by numerous federal and state court decisions, the FAA and New Jersey’s arbitration statute have powerful double edges that must be understood by lawyers and explained to clients.

In Gilmer v. Interstate/Johnson Lane Corporation, the United States Supreme Court gave its strongest signal that courts must compel arbitration of private disputes under the FAA, including arbitration of civil rights and other substantial statutory claims. The Court reasoned that, “‘by agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.'” The only limits on that mandate are clear proof that Congress intended such claims not to be arbitrated compulsorily, or that the agreement to arbitrate is revocable. Importantly, the Gilmer case raised, but did not resolve finally, the issue of “inequality of bargaining power” as that defense relates to revocability of the underlying arbitration clause. The Court in that case described Mr. Gilmer as “an experienced businessman,” and found that he was neither “coerced nor defrauded into agreeing to the arbitration clause in his securities registration application.”

The FAA’s scope of application is an important issue, both substantively and procedurally. The Supreme Court has used federal preemption principles to determine the arbitrability of disputes arising under state law, and generally has favored arbitration. In Southland Corp. v. Keating, the Court declared that arbitration clauses in standardized contracts between companies doing business across state lines will be enforced under the FAA, regardless of whether the cases are brought in state or federal court. The Court earlier ruled that the FAA created a federal substantive law of arbitrability, applicable to any agreement within the FAA’s coverage.

In Allied-Bruce Terminix Companies, Inc. v. Dobson, the Court recently expanded that interpretation to the very limits of the federal Commerce Clause powers. In Allied-Bruce, a termite control company sought to enforce an arbitration clause contained in a standard agreement with a home buyer whose predecessor had contracted with the company for extermination services. The Court invalidated the Alabama Supreme Court’s use of a state anti-arbitration statute as well as the state court’s finding that the transaction was primarily local and not substantially interstate. “The FAA makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal ‘footing,’ directly contrary to the Act’s language and Congress’s intent.” However, the Court also noted that states have implied authority under the FAA to protect parties “against unfair pressure to agree to a contract with an unwanted arbitration provision.”

Following the Supreme Court’s decision in Gilmer, most federal courts, including the Third Circuit, have interpreted Gilmer broadly to require arbitration of federal and state statutory claims, despite Gilmer’s statement that the “unequal bargaining power” defenses would be resolved on a case-by-case basis. In two recently decided cases, the Ninth Circuit stepped into the breach and refused to compel arbitration.

In Graham Oil v. Arco Products, the Ninth Circuit voided a mandatory arbitration clause, finding that the underlying franchise agreement was a contract of adhesion. The court found that Arco’s arbitration clause violated Congress’s intent regarding punitive damages, counsel fees, and a specific statute of limitation in cases filed under a petroleum franchise protection statute. “The arbitration provision . . . is invalid,” wrote the court, “and the court — not an arbitrator — must decide the merits of the claims.”

In Prudential Ins. Co. of America v. Lai, a sexual harassment case, the Ninth Circuit determined that employee claimants had not made a knowing waiver of their Title VII and related state statutory rights, remedies, and procedural protections. Citing Gilmer and antecedent cases, the court said: Although the Supreme Court has pointed out that plaintiffs who arbitrate their statutory claims do not ‘forego the substantive rights afforded by statute,’ . . . the remedies and procedural protections available in the arbitral forum can differ significantly from those contemplated by the legislature.

No New Jersey or Third Circuit decisions squarely address the issue of a party’s resistance to compulsory arbitration based on defenses of contract adhesion or unknowing and involuntary agreement to arbitrate. In a non-arbitration setting, the Appellate Division recently restated New Jersey’s law of adhesion contracts. In Leonard & Butler, P.C., v. Harris, the court invalidated an agreement between a law firm and its associate. Citing Vasquez v. Glassboro Serv. Ass’n, Inc., the court found that the parties in Leonard & Butler were in positions of relative inequality and that the associate’s consent was not given freely. However, since state law adhesion contract principles may not apply under the FAA’s federal preemption standards, it is unclear whether the Ninth Circuit’s cogent reasoning in Graham Oil and Prudential Insurance will make a difference to New Jersey residents. It remains for the Third Circuit, the U.S. Supreme Court, or Congress to provide definitive answers in this important and evolving area of law.

In Bleumer v. Parkway Ins. Co., another recently decided New Jersey case, Judge Schwartz had to decide whether the FAA mandated arbitration of a New Jersey statutory “whistleblower” claim. Anticipating the U.S. Supreme Court’s decision in Allied-Bruce, supra, Judge Schwartz held that arbitration of plaintiff’s statutory claim was compelled under the FAA and the Commerce Clause, and further held that the disputed arbitration clause was broad enough to require submission of the underlying dispute to arbitration. Plaintiff did not raise an “unequal bargaining power” defense to arbitrability, but Judge Schwartz clearly implied that such a claim, if later raised, would have to be resolved by the arbitrator. Although Judge Schwartz did not finish the thought, the Third Circuit has ruled that an arbitrator’s decision to assert jurisdiction despite a party’s clear and continuing objection is de novo reviewable.

The above-cited cases and theories contain important lessons for all New Jersey lawyers. First, it is very easy for parties to enter into an agreement containing an arbitration clause, but very difficult to avoid arbitrating such agreements once a dispute arises. The reach of the FAA and the Commerce Clause will compel arbitration in almost all cases, whether enforcement is sought in state or federal proceedings. Second, arbitrability defenses will be limited to statutory history and policy arguments — usually unavailing — and to involuntariness arguments, which have received limited judicial support to date. Finally, a party’s chances of successful resistance to compulsory arbitration under the FAA or New Jersey’s arbitration statute would appear to be enhanced under the following circumstances:

(1) The resisting party’s underlying cause of action alleges egregious misconduct by the party seeking to compel arbitration;
(2) A clearly identifiable public policy undergirds the statutory or other remedy that the resisting party seeks to enforce in a court setting; and
(3) The resisting party can prove A. gross inequality of bargaining power relative to the other party; B. limited or no understanding of important substantive or procedural rights waivers that the adverse party now seeks to enforce; or C. a combination of these factors.

Following an arbitration award, and absent a contractual provision permitting an appeal to the courts, under what circumstances may a dissatisfied party file an appeal from an arbitration award? In Tretina Printing, Inc. v. Fitzpatrick & Assoc., Inc., an important case decided last year, the Supreme Court of New Jersey definitively answered that question. The Tretina Printing case announced the following review standards:

Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. They can be corrected or modified only for very specifically defined mistakes as set forth in N.J.S.A. 2A:24-9.
According to Tretina Printing, “correctable mistakes” are those that appear on the face of the arbitration award only, rather than mistakes alleged to underlie the arbitrator’s decision or rationale — whether stated or not. A narrow exception to the non-reviewability rule has been recognized in cases where (1) the parties’ dispute involves an important public policy question; (2) the parties have directed the arbitrator to determine legal issues in accordance with New Jersey law; and (3) the arbitrator then makes a fundamental mistake of law.

Given the foregoing principles, parties to a New Jersey private arbitration proceeding should treat the arbitration award as final and probably non-reviewable unless there is clear proof (a) of arbitrator misconduct; (b) that the arbitrator exceeded his or her powers in rendering the award; or (c) that there is a mistake on the face of the award requiring correction (i.e., “two plus two equals five”). Jurisdictional defenses under item (b), above, whether raised pre-hearing or post-award, may include a party’s assertion of contract adhesion or unknowing and involuntary waiver of substantial statutory rights. Absent claims under items (a) through (c), above, or some combination thereof, the arbitration award will be confirmed upon a party’s N.J.S.A. 2A:24-7 application to the Law Division of Superior Court.

Armed with the above information, lawyers should be extremely careful when drafting or incorporating arbitration clauses into agreements, whether such agreements are standard or customized. Just last month, in Mastrobuono v. Shearson Lehman Hutton, Inc., the U.S. Supreme Court reminded us that arbitration clauses will be enforced in accordance with their specific language. In that case, the Court construed apparently conflicting choice-of-law clauses and upheld claimants’ right to a punitive damages award in a securities case.

Lawyers also should be alert to important nuances in the creation and review of substantive and procedural A.D.R. clauses. What A.D.R. neutral group or individual will administer and decide the dispute? What forum state will the dispute be resolved in? What state’s law will apply, including conflicts of law? What statute of limitations will apply? What time limits, discovery powers and limits, motions practice and limits, subject matter jurisdiction, and like matters, will bind the arbitrator and the parties? Are attorney fees and costs awardable? How about consequential damages? How about punitive damages? Do the parties want to stipulate to an appeal process? Do they not want an appeal process? Is the arbitrator’s award binding? Is it to be a “reasoned” award or a “bottom line” award? How many arbitrators will hear and decide the dispute? What about calendar commitments and control? What about the arbitrator’s power to sanction a party for rules violations? Do the parties want mediation or other “user friendly” A.D.R. methods to precede arbitration? This list is not exhaustive, but merely illustrative. Failure to consider and decide these and other important items may yield some nasty surprises, including a client’s later allegations of professional negligence. Clearly, litigation and transaction lawyers must work together to represent the client’s interests properly.

Moreover, the concepts and challenges set forth in this article also present the legal community with a number of exciting opportunities. Attorneys now have the chance to create “customized private justice” agreements on behalf of clients, or, when given sufficient notice by clients, to resist or seek changes to A.D.R. clauses that are improper or one-sided. Attorneys also must warn their clients about the possible presence and impact of arbitration clauses within contracts of all kinds, and advise clients not to sign such agreements without careful preview and adjustment by legal counsel. Otherwise, clients may end up pursuing important claims in an unsatisfactory forum, with enforceable results, and without appeal rights. This scenario could cause parties and legal counsel to distrust and avoid private arbitration, just as the public has become increasingly disillusioned by the delay and expense endemic to the court system. This is not a criticism of the private arbitration system, but rather a prediction of negative outcomes and unhappy clients if arbitration clauses are poorly drafted or badly negotiated.

It is important to recognize that not all arbitration clauses are negotiable, even if terribly one-sided. “Take it or leave it” contract offers are facts of life, both ancient and modern. In disputed matters where clients already have signed agreements containing defective or onerous arbitration clauses, however, lawyers clearly must articulate continuing objection to proceeding with arbitration, and should gather proof of all grounds for resisting arbitration, including (a) relevant and available statutory history; (b) public policy, (c) contract of adhesion, and (d) unknowing and involuntary waiver. We also should seek renegotiation of challengeable arbitration clauses, or even resolution of the underlying dispute, based on the favorable court record that we are prepared to establish.

Finally, and notwithstanding our best arguments against compulsory arbitration in a given case, there actually may be cases that our clients are better off arbitrating. Our clients may be facing severe economic constraints, they may express a strong desire to “get this thing over with”, or their chances of success on the merits — including a damages award — are as good as or better in arbitration than what they could expect if the matter went to the public courts. In Allied-Bruce, supra, for example, the Court noted arbitration’s specific advantages for big and small businesses, corporate interests, and individuals. The Court also cited the American Arbitration Association’s amicus brief and appendix, which described “more than one-third of its claims as involving amounts less than $10,000, while another third involve claims of $10,000 to $50,000 (with an average processing time of less than six months).” The decision to arbitrate despite an arguable and good faith defense to the arbitration clause is a judgment call that only the client can make, upon full discussion with legal counsel.

The Role of Private Mediation
Given arbitration’s complex and litigation-prone nature, private mediation has begun to play an increasingly important role in the A.D.R. field. Mediation, also referred to as third-party facilitated negotiation, is much less formal and structured than its adversarial cousin. Unless contractually or otherwise mandated, mediation is totally voluntary. It can be started at any time, even during contested litigation or arbitration proceedings. Often, the best time to mediate is when there is a “shotgun behind the door” in the form of a pending trial or arbitration date. However, its attraction is highest in the early dispute phase, before the “big money” has been spent on discovery and motions practice.

Mediation gives the parties an opportunity to step back from the precipice and seek input from a third voice whose only object is to get the parties to reach agreement. Since mediation’s stated goal is a “win-win” outcome for the parties, clients perceive the process as far less threatening and provocative than litigation or arbitration. It also is a highly preferred technique when the parties have an underlying relationship worth preserving.

Can mediation serve the parties when a contract contains a contested arbitration clause? Absolutely. The parties may agree to sit down and negotiate with one another, without prejudice to their positions in arbitration or in court proceedings contesting or enforcing arbitration if the dispute fails to settle. Often, a company that publicly insists on upholding its arbitration clause — perhaps out of fear of creating an avalanche of litigation and negative publicity if it “gives in” — will agree to informal mediation of a dispute. The other party may be just as happy mediating the dispute, rather than litigating the meaning and enforceability of the arbitration clause, because the legal fees and expenses could be just as high as — or even higher than — arbitrating or litigating the case on its merits.

The parties also could agree to a two-step process, starting with mediation and going to binding arbitration should the parties’ mediation efforts fail to settle a dispute in whole or in part.

I have served in different matters as an arbitrator, mediator, and civil trial attorney for about 15 years now. In my experience, mediation as a dispute resolution technique unquestionably is best at preserving and enhancing the parties’ underlying relationship, and also at bringing about the most creative and elegant solution to the parties’ short- and long-term interests. In the adversarial process, even when people exhibit model behavior, creative thinking generally is diminished or absent. Emotions tend to take precedence over reasoned thinking, both for the litigants and their lawyers.

In court or arbitration settings, the parties and their counsel tend to concentrate on getting the most for themselves and giving the least to the other. Each party’s goal is to “win”, which often means that the other party must “lose” as a consequence. With so much energy being expended in producing a “win” for one side and a “loss” for the other, there is little room to explore areas of mutual enhancement and gain.

Mediation gives the parties an opportunity to change their relationship fundamentally. The parties are working towards mutual — and not mutually exclusive — goals. The parties figuratively, and sometimes literally, are placed on the same side of the table. Maximizing both parties’ outcomes becomes the conscious goal of everyone involved: the mediator, the parties, and legal counsel. The parties may share resources and evaluation costs as they unravel their dispute. They become members of a cooperative team. They are advised to listen more and talk less. An ancient proverb expresses it well: “First seek to understand, and then to be understood.”

Sometimes, mediating parties uncover the root causes of their dispute and have a chance to work together to correct or mitigate those causes. By contrast, the adversarial process helps the parties avoid root causes in every way possible except symbolically.

Mediation, when successful, is a far cry from the devastation and expense endemic to “scorched earth” litigation or arbitration tactics. And let us not forget: it is the clients who foot the bill. At the end of the litigation or arbitration process, the parties’ problems not only may remain unsolved, they may be compounded significantly.

When used appropriately, either in predispute or post-dispute A.D.R. contract clauses, the combination of private mediation and binding arbitration can be powerful and effective. However, either process may be used without the other, and also may be invoked at any stage of the parties’ dispute, including during litigation. The only limitation is the parties’ — or perhaps legal counsel’s — willingness to be creative and constructive.

Available A.D.R. Resources for Lawyers
In recent years, New Jersey’s A.D.R. community has produced an impressive variety of available resources, the best-known of which are listed here in no particular order.

  • The American Bar Association and the New Jersey State Bar Association have created Dispute Resolution Sections within the past two years. Membership in both sections is active and diverse.
    Rutgers University’s Newark Campus has announced a new Certificate Program in Conflict Management, which is starting in June of 1995.
  • Seton Hall Law School sponsors an Institute for Dispute Resolution, emphasizing training of divorce and commercial mediators. Professor James Boskey, who teaches at both the Institute and at Seton Hall Law School, publishes a comprehensive and data-packed A.D.R. resource guide called The Alternative Newsletter, which is available inexpensively on an annual subscription basis.
  • The American Arbitration Association – New Jersey Regional Office (“A.A.A-N.J.”), with offices in Somerset, New Jersey, is the state’s most popular source of neutrals, and historically has done the bulk of training for New Jersey’s commercial arbitration and mediation neutrals.
  • The Society for Professionals in Dispute Resolution (“S.P.I.D.R.”), an international association of neutrals, has an active New Jersey chapter that is administered by A.A.A.-N.J.
  • The New Jersey Association of Professional Mediators (“N.J.A.P.M.”) is a non-profit association of mediation neutrals emphasizing business and divorce mediation, with offices in Edison, New Jersey.
  • The New Jersey Administrative Office of the Courts has an active section on Complementary Dispute Resolution (“C.D.R.”) that oversees court-annexed and court-referred training and supervision of third party neutrals. It also gathers statistical data on C.D.R.’s use and efficacy in the state court system.
  • New Jersey’s Dispute Settlement Office, headed by Eric Max, provides mediation services in complex — often court-referred — disputes involving public and private entities, and historically has handled training and supervision of mediation neutrals in court-annexed, court-referred, and community based programs.
  • Congressional initiatives and mandates, state legislative enactments, federal and state court programs, executive and administrative policies of federal and state governments, business community pressures, academic community interests, and consumer impatience with the status quo, together have spawned an A.D.R. industry throughout our state and country.

This article has touched on a number of important issues affecting New Jersey’s A.D.R. community, which includes the legal community. The processes of arbitration, mediation, negotiation, contract drafting, and lawyer advocacy are complex and interactive. The federal and state court systems’ overlapping supervisory, interpretive, and enforcement roles further complicate matters for us and for the public that we serve.

In 1992, the Supreme Court of New Jersey mandated that “lawyers should become familiar with available alternative dispute programs and inform their clients of them.” In 1990, the Trustees of the New Jersey State Bar Association issued a resolution to that effect as well. Lawyer and client education are important first steps, certainly.

However, we lawyers face a challenge well beyond that of self- and client-directed education: To be ever-creative with — and yet professionally responsible regarding — old, new, and developing tools of the A.D.R. trade. Are we up to the task? As advocates for the public’s and our own long-term best interests, how can we afford not to be?

1. See Roth, Wulff, and Cooper, The Alternative Dispute Resolution Practice Guide S. 2:1, at 2, Lawyers Cooperative Publishing (1993) (hereafter “A.D.R. Practice Guide”), and cases cited therein.
2. 9 U.S.C. S. 1, et seq.
3. A.D.R. Practice Guide, supra, id. at 2-3.
4. N.J.S.A. 2A:24-1, et seq. This statute fundamentally differs from — and should not be confused with — New Jersey’s Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1, et seq. (1987) (“A.P.D.R.A.”). A.P.D.R.A. is an innovative but underutilized law that permits privately contracting parties to incorporate a specific arbitration procedure into their agreements, including one appeal to the Chancery Division.
5. Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 640 A.2d 788 (1994).
6. Wasserstein v. Kovatch, 261 N.J. Super. 277, 284 (App. Div. 1993), certif. den. 133 N.J. 440 (1993). See also, Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1512 (3rd Cir. 1994) (Arbitration fundamentally is a creature of contract).
7. 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
8. Id., 111 S.Ct. at 1652 (citation omitted).
9. Id.
10. Id., 111 S.Ct. at 1655-56.
11. Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
12. Southland Corp., id.
13. The FAA does not, however, provide an independent basis for federal subject matter jurisdiction. 9 U.S.C. S. 4. See Whiteside v. Teltech Corp., 940 F.2d 99, 101-02 (4th Cir. 1991).
14. Moses H. Cone Memorial Hosp., supra, 460 U.S. at 23.
15. 513 U.S. ___, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995).
16. Id., 115 S.Ct. at 843.
17. Id., citing 9 U.S.C. S. 2.
18. See, e.g., Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161 (5th Cir. 1992) (Title VII sex discrimination); Kaliden v. Shearson Lehman Hutton, Inc., 789 F.Supp. 179 (W.D. PA. 1991) (Pennsylvania state handicap and age claims); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932 (9th Cir. 1992) (sexual harassment claim); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Scott v. Farm Family, 956 F.2d 932 (9th Cir. 1992) (state and federal sex discrimination and tort claims); Saari v. Smith Barney, Harris Upham & Co., 968 F.2d 877 (9th Cir. 1992) (state and federal employee polygraph protection statutory claims). See also Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1118 (3rd Cir. 1993) (“The Supreme Court has ruled . . . that agreements between securities dealers and investors are enforceable even though they may involve unequal bargaining power.”)
19. Gilmer, supra, 111 S.Ct. at 1656.
20. 43 F.3d 1244 (9th Cir. 1994).
21. Id. at 1249.
22. 42 F.3d 1299 (9th Cir. 1994).
23. Id. at 1305 (citations omitted).
24. ___ N.J. Super. ___, ___ A.2d ___ (App. Div. 1995) (Docket No. A-5875-93T1; approved for publication on February 27, 1995).
25. 83 N.J. 86, 101-05 (1980).
26. A.D.R. Practice Guide, supra, S. 2.6, at 7-8, and cases cited therein. But see Allied-Bruce Terminix Companies, Inc., supra, 115 S.Ct. at 843 (“FAA S. 2 gives States a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision.”).
27. 277 N.J. Super. 378, ___ A.2d ___ (Law Div. 1994).
28. Id. at 408 n. 6.
29. Kaplan, supra, 19 F.3d at 1512-13.
30. 135 N.J. 349, 358, 640 A.2d 788 (1994).
31. Id.
32. Weiss v. Carpenter & Morrissey, 275 N.J. Super. 393, 401, ___ A.2d ___ (App. Div. 1994), citing Tretina Printing, Inc., supra, 135 N.J. at 364-65, and Faherty v. Faherty, 97 N.J. 99, 112, 477 A.2d 1257 (1984).
33. ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (1995) (Docket No. 94-18; published March 6, 1995).
34. 115 S.Ct. 834, 842-43.
35. See Rogers and McEwen, Mediation: Law, Policy & Practice, Clark Boardman Callaghan, 2d Ed. 1994, Chs. 7 and 8, and authorities cited therein. See also Pressler, Current N.J. COURT RULES, R. 1:40-1, et seq. But see Preliminary Report of the Commission to Study the Law of Divorce, issued March 15, 1995, at pp. 26-27 (“The mediation proposal would . . . provide that if a divorcing party, with regard to economic matters, objects to attending the mediation session, the matter would not be referred to mediation.”).
36. Pressler, id., R. 1:40-1.
37. In November of 1990, the Trustees of the New Jersey State Bar Association adopted the following Resolution on utilization of alternative and complementary dispute resolution techniques:

  • The New Jersey State Bar Association is committed to the earliest meaningful implementation of voluntary A.D.R. and C.D.R. procedures by New Jersey’s lawyers in matters in which they regard A.D.R. and C.D.R. as an appropriate technique for resolving a particular client’s problem.
  • The New Jersey State Bar Association urges New Jersey lawyers to become familiar with A.D.R. and C.D.R. techniques which may be utilized in the areas of law in which they practice, by participating in continuing legal education programs or utilizing other resources available to them and, where they deem it appropriate, to inform their clients of the nature, value and risks of those techniques and guide their clients as to whether or not to participate in appropriate A.D.R. and C.D.R. opportunities.