NJSBA Family Law Section

 View Only

  • 1.  PSA and Mediation Clause

    Posted 10-24-2019 01:53 PM

    Hello list mates.  Can anyone please cite a case or refer to authority which supports the idea that one litigant may avoid a clause in an agreement which requires the parties to first attempt negotiations or mediate prior to filing an application with the Court – when to do so would arguably be detrimental due to special circumstances such as an ex parte Order to Show Cause or cohabitation case - where to comply with the clause would result in putting the other party on notice, which would obviously undermine the sensitive nature of the application. 

     Any guidance would be greatly appreciated.



    ------------------------------
    Timothy Haggerty Esq.
    Obrien Belland & Bushinsky Llc
    (856)795-2181
    ------------------------------


  • 2.  RE: PSA and Mediation Clause

    Posted 10-24-2019 06:59 PM
    Timothy,

    General NJ contract law states that contract terms will not be enforced if they lead to absurd or harmful results.

    No one should be required to attempt pre-litigation ADR if a bona fide emergency exists -- especially if notifying the other side could result in the feared harm.

    Most MSA's make the distinction between regular and emergency applications. If your client's does not, and the issue goes to court, then argue implied waiver from ADR to court for good cause shown, and the absurdity of strictly construing an ADR clause that itself must remain subject to changed circumstances.

    Hanan



    Hanan-New-pic.jpg

    Hanan M. Isaacs, Esq.
    President/Senior Attorney
    P: 609.683.7400  F: 609.921.8982
    E: [email protected]
    www.kingstonlawgroup.com



    Original Message