Letter to New Jersey Lawyer

May 20, 2003

Editor,
New Jersey  Lawyer
2035 Lincoln Highway
Suite 3005
Edison, NJ    08817

I am writing as a result of the State Bar Association’s report on the arbitration system.  When reading the reasons for the study, and the areas to be examined, I was impressed.  When reading the recommendations, I was in disbelief.  After conducting a thorough study, the Bar Association suggested two choices: a) make massive changes; or  b) scrap the system. 

The data provided indicates that from September of 2000 to August of 2001, 76,644 cases were scheduled for arbitration, and 27,285 were actually arbitrated.  The study completely ignores the fact that almost two thirds of the cases scheduled for arbitration were never arbitrated.  What happened to these cases? Certainly some were dismissed as a result of summary judgment motions, others may have been removed from arbitration or sent to mediation instead.  However, many of these cases must have been resolved as a result of the scheduling of the arbitration.  In one of the footnotes to the report, it is revealed that two thirds of Federal Court cases sent to arbitration from April 1, 2002 to March 31, 2003 settled before the hearing.

Prior to “best practices,” the parties often were not ready due to discovery issues.  Since best practices, parties are no longer permitted to amend their interrogatories post-arbitration, absent exceptional circumstances, or an accommodating adversary. Some middle ground needs to be reached, but we can’t just put our hands up and give up.  What are the statistics for settlement conferences?  If they are similar, should we scrap them too?

The high de novo rate of almost 75% for automobile matters, while calling out for reforms of some type, does not justify eliminating a system that still resolves over 25% of all arbitrated matters.   Why do the reforms proposed by the Bar Association have to be so drastic?  Mediation doesn’t work unless the clients participate and the parties are open-minded.  Does anyone actually believe that Allstate will pay money to settle a case at mediation that it would de novo if arbitrated?  Why is mediation thrown out as a blanket cure for everything?  Most cases sent to court approved mediators do not settle, and few ever go beyond the first three “free” hours. 

As someone who serves as an arbitrator in Bergen County in all three areas, as a court approved mediator, and as an attorney whose own cases often come to arbitration, I firmly believe the process works well when everyone does what is required.   Judges Doyne and Mecca, in their annual address to Bergen County arbitrators, stressed the fact that a case that will clearly be no caused at trial should be no caused at the arbitration.  If an arbitrator wants to try to make everyone happy, see if the case can be settled before the arbitration.  Awarding a plaintiff $5000 against an Allstate insured for a soft tissue injury case with no objective findings is not doing justice.  Similarly, awarding less than the full $100,000 policy on a catastrophic injury case to save the carrier a few dollars is also an injustice. 

Lets keep the discussion flowing, and look to tweak the system as needed.   Lets not ignore outside factors such as the push for tort reform, rising insurance costs, and our economy, as well as attorneys just getting used to best practices (which surprisingly no one is pushing to scrap).   

                                     
                                 Lawrence M. Simon, Esq.