Some civil cases go to arbitration instead of going to trial. An arbitrator will hear the case, consider evidence, and decide the outcome. Typically, arbitration ends with an award to one party or a dismissal of the case.
Attorneys are required to complete this questionnaire as directed by the notice received from the Civil Presiding Judges.
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There are several advantages to arbitration. It is a faster and cheaper than going to trial. Both parties get an impartial, third-party expert to review the case. This helps when the parties reach an agreement. Arbitration is less formal than trial. Each party gets tell their side of the case. Proceedings are kept confidential. Once both parties accept the arbitration award, it becomes legally binding and enforceable.
Arbitrators are experienced lawyers. Some are retired judges. They must have a minimum of 10 years’ experience in the area of law pertaining to the case. Each arbitrator receives formal training and must be approved by the assignment judge.
Arbitration is mandatory for certain civil cases:
- automobile negligence (N.J.S.A. 39:6A-24, et. seq);
- personal injury (N.J.S.A. 2A:23A-20, et. seq);
- suits against a party's insurance carrier for unpaid bills arising from a vehicular accident; and
- certain commercial cases.
In addition, Lemon Law cases can go to arbitration. Lemon law cases involve defective cars or other products that do not work.
Voluntary Binding Arbitration (vba)
Cases can be referred by the courts for voluntary binding arbitration. You can learn more from the Civil CDR Program Resource Book appendix. Here is a summary of the process:
- The parties file a written consent form that submits the case to binding arbitration.
- The parties must also submit a consent order of dismissal with prejudice. This means that the court case is dismissed and the parties will abide by the arbitrator's decision.
- The case is then presented to a panel of two arbitrators whom the parties have selected.
- A Superior Court judge, also selected by the parties, is present. The judge only participates if the arbitrators do not agree.
- The judge explains to the parties that the decision of the panel will be final and not appealable.
- All parties must then agree, on the record, that they understand the final and binding nature of the program.
- The arbitration itself proceeds off the record.
- The parties often use a high/low agreement, which the arbitrators do not see. The high/low provision lets the attorneys know what is the best and the worst that could happen for their clients in the case. For the plaintiffs, that’s a guarantee that at least they get something. The incentive for the defense is that it can set a cap and limit its exposure. The high/low provision helps to protect the client -- whether the client is the plaintiff or the defendant.
The courts do not schedule the case nor pay the arbitrators. It is the responsibility of the attorneys using VBA to coordinate the arbitrators, arrange payment, and ensure attendance at a time when the judge is available.
NOTE: In lemon law cases only, if the parties fail to submit the completed VBA materials to the court within 30 days, the case will be referred to mediation.
Resources for Arbitrators
Continuing education trainings are being offered for active roster arbitrators. See list of scheduled trainings. The list will be updated as trainings are added. Arbitrators are welcome to attend any of the trainings, even those outside the county in which they regularly arbitrate. For information on whether a specific vicinage will be offering a training, contact the county’s Arbitration Administrator/CDR Point Person.
This checklist is available to help you during arbitration:
- Introduce all participants.
- Explain the adjudicatory nature of the proceeding and his/her background as an unbiased attorney approved by the court and local bar.
- Take stipulations.
- Swear in witnesses.
- Allow all sides to present relevant information.
- Make a determination based solely on the evidence presented and either call a “no cause” or award full value.
- Complete the written award ensuring that brief findings of fact and conclusions of law are included and that the absence of parties, or relevant evidence, or of items of incomplete discovery is noted.
- Absent exceptional circumstances, deliver the award in the presence of the parties.
- If the arbitrator conducts a settlement conference prior to rendering a decision on the merits of the case, he or she should not continue the arbitration process, but should instead turn the arbitration over to another arbitrator. Otherwise, the arbitrator should not engage in settlement negotiations until after the award form is completed and only with the parties’ consent.
Access the contact list for the Arbitration Administrators and CDR Point Persons Committee.
Statewide Adjournment of Arbitration
- All requests to adjourn a civil trial or an arbitration are governed by Rule 4:36-3(b).
- A good faith effort shall be made to discuss any request for an adjournment with all other parties before the request is presented to the court.
- All adjournment requests must be made in writing, submitted to the civil division manager. Faxed submissions are acceptable. Telephone requests will not be accepted absent exceptional circumstances. Requests must be copied to all other parties.
- Any request for an adjournment must be presented as soon as the need for an adjournment is known. Absent exceptional circumstances, the request must be presented no later than the close of business on the Wednesday preceding the week the matter is scheduled for trial or arbitration.
- The written request must indicate the reason or reasons the adjournment has been requested, and whether the other parties have consented to the proposed adjournment. The written request should also include a new proposed date for trial or arbitration, consented to by all parties. If consent cannot be obtained, the court will determine the matter by conference call with all parties.
- If the adjournment request is based upon a conflict with another court proceeding, the party requesting the adjournment must indicate whether he or she is designated trial counsel and supply the name of the other matter, the court and county in which it is pending, and the docket number assigned to the matter.
- No adjournments will be granted to accommodate dispositive motions returnable on or after the scheduled trial date.
- A matter should not be considered adjourned until court staff has confirmed that the request for an adjournment has been granted. Timely response will be given to the party requesting the adjournment, who will then be responsible for communicating the decision to all other parties.
- To the extent any party is dissatisfied with the decision made by the civil case management office, the following procedure should be followed:
- in master calendar counties, the aggrieved party should present the matter to the civil division manager directly; to the extent that any party is dissatisfied with the decision made by the Civil Division Manager, that party may ask that the matter be presented to the civil presiding judge;
- in individual/team calendar counties, the aggrieved party should present the matter to the civil division manager directly; to the extent that any party is dissatisfied with the decision made by the civil division manager, that party may ask that the matter be presented to the pretrial or managing judge.
- Requests for adjournment of a civil trial based on expert unavailability are governed by R. 4:36-3(c).
- See Directive #6-04 for more information.
How to Become an Arbitrator
ARBITRATOR SCREENING AND APPOINTMENT GUIDELINES
- All new arbitrators must submit a completed uniform application form with a copy of their resumé and proof of attendance at the required initial training in accordance with R. 1:40-12(c). Existing arbitrators applying for appointment in additional counties must submit proof of attendance at a continuing training in accordance with R. 1:40-12(c).
A certified civil trial attorney with the requisite experience, who has also completed the training and continuing education required by R. 1:40-12(c), will be entitled to automatic inclusion on the roster.
After attending the initial training, a new arbitrator shall attend continuing training after two years. Thereafter, an arbitrator shall attend continuing training every four years. R. 1:40-12(c)(1). Arbitrators who have already attended the initial training and at least one continuing training shall attend continuing training every four years. R. 1:40-12(c)(2).
Completed application forms should be submitted to the arbitration administrator of the county in which the arbitrator wishes to serve. Appointments to the roster cannot be provisional. All required documents must be submitted prior to consideration for appointment to the roster.
The arbitration administrator will verify and submit the application and accompanying documents to the local selection committee. No applicant is permitted to submit required paperwork directly to the local selection committee nor can the local selection committee consider any applicant that has not previously submitted all required paperwork to the arbitration administrator. After its review, the local selection committee will then submit recommendations for the roster to the assignment judge or his/her designee for final approval. This is necessary to ensure that arbitrators are qualified in accordance with R. 4:21A-2.
- Upon approval by the assignment judge or his/her designee, the arbitration administrator will advise the AOC Civil Practice Division of the appointment of new arbitrators to the county roster.
- Any individual who feels that he or she has been aggrieved during the application or review process may bring this matter to the attention of the assignment judge for review.
- The local selection committee shall annually review the roster of arbitrators Revised 09/10//2019 in consultation with the civil presiding judge, civil division manager and Arbitration Administrator and make recommendations to the Assignment Judge to remove arbitrators from the roster. See R. 4:21A-2(b). It is imperative that staff are an integral part of this process so that evaluations include staff input regarding arbitrator scheduling issues, time management, promptness, cooperation, professionalism, availability and other relevant issues.
Arbitrator mentoring and other assistance should be made available at the county level. General concerns identified as a result of the evaluation process should be addressed at county meetings to the extent practicable, with assignment judges always welcome to reach out to the AOC Civil Practice Division on arbitration-related issues.
- Each county is encouraged to establish a local monitoring and support committee to provide assistance to arbitrators, court staff, and judges regarding any arbitration-related issues. This can be part of the existing bar committees.
Related Dispute Resolution
Arbitration is a process in which a dispute is submitted to experienced and knowledgeable neutral attorneys or retired Superior Court Judges who hear arguments, review evidence and render a non-binding decision. It is less formal, less complex and often can be concluded more quickly than court proceedings.
Frequently Asked Questions
- the parties require an independent decision to resolve the dispute;
- the parties have full information, but seek the opinion of a third party respecting the extent of damages, or the credibility of witness;
- the parties are committed to “litigating” and are not open to negotiation;
- the parties have no relationship beyond a single incident and the disputed issues involve only the amount of money damages; or
- the amount at stake is relatively small and a quick third-party decision is of primary importance, e.g., simple book account cases.
Q. What cases are amenable to resolution by arbitration?
Arbitration has been found to be particularly effective in resolving cases having the following characteristics:
Q. What types of cases are arbitrated?
Arbitration is mandatory statewide for civil cases involving automobile negligence, personal injury, contracts and commercial matters, products liability and personal injury protection suits against one’s own insurance carrier for unpaid insurance benefits.
Q. Who are the arbitrators?
Arbitrators are attorneys who have at least ten years of consistent and extensive experience in New Jersey in the pertinent substantive area of law. Arbitrators are selected by the Assignment Judge or his/her designee on recommendation of the local bar association and are paid a per diem fee by the court for their services. Retired Superior Court Judges may also serve as arbitrators.
Q. How does arbitration work?
All attorneys and all parties are notified of their date for an arbitration hearing. Before the scheduled hearing, each party shall exchange a statement of the factual and legal issues. Although attendance by each party or their attorney is required, all attorneys and parties are strongly encouraged to appear at the hearing.
The arbitrator conducts the hearing during which each party presents its case. Parties are permitted to introduce exhibits and other relevant documentary evidence. The arbitrator generally exercises the powers of the court in the management and conduct of the hearing.
After the hearing, the arbitrator renders a non-binding decision and a written award. The decision is usually rendered on the day of the arbitration hearing in the presence of the participants.
Q. What if I am not satisfied with the arbitrator’s award?
A party who is not satisfied with the arbitrator’s award can reject the award and get a trial by filing a notice called a “demand for a trial de novo” with the court and serving it upon all parties within 30 days of the filing of the arbitrator's award. The court is very strict concerning enforcing the 30-day time limit. The effect of not filing the demand for trial de novo is that the award, whether a monetary award or a dismissal, can be converted into a judgment.
A party requesting a trial de novo must pay a trial de novo fee to the Treasurer, State of New Jersey. Under certain circumstances if the requesting party does not significantly improve their position at trial, they may also be liable to pay other reasonable costs, including attorney fees of the other party up to $750, and witness costs up to $500 after the trial is concluded.
- arbitrators are knowledgeable and experienced attorneys or retired Superior Court Judges;
- prompt scheduling, expeditious procedures, and established time frames for each step serve to limit the time required to resolve the case;
- many of the costs associated with the formal court process can be eliminated by arbitration;
- each party tells his or her side of the case to an arbitrator in an atmosphere that is less formal than a court proceeding;
- an arbitrator's decision and award may resolve a case or serve as the basis for further negotiations to a settlement; and
- arbitration awards, if accepted by all parties and confirmed by the court, are legally binding and enforceable
Q. What are the advantages of arbitration?
Some of the advantages of arbitration include: