By: Jeralyn L. Lawrence and Charles F. Vuotto Jr.
Since the worldwide pandemic began in early 2020, the New Jersey court system has worked diligently to modify its approach to the administration of justice to take into account the health crisis. Part of that adjustment included a remote or virtual approach to various forms of court appearances, including but not limited to, trials, plenary hearings, motions, case management conferences, and Mandatory Early Settlement Panels (MESP). From discussing this issue with colleagues and being engaged in multiple bar groups where this issue has been addressed, it appears to be the majority opinion among the organized bar that certain court events should continue in the virtual setting including MESP’s. In fact, that the New Jersey State Bar Association in its Pandemic Task Force Practice of Law Subcommittee Final Report to the Honorable Glenn A. Grant asserted this position. This column focuses on the MESP. It is the authors’ understanding that a few counties are considering or have changed the all-virtual format to require litigants, their attorneys, and panelists to appear in person. Not only is this contrary to the desire of the vast majority of MESP panelists across the state, but it is also simply not fair or necessary. Further, it is contrary to Chief Justice Stuart Rabner’s Nov. 18, 2021 Notice to the Bar and Public regarding the Future of Court Operations. Specifically, Paragraph 8 of the Notice indicated that MESP’s are to continue virtually.
Opinions vary as to whether virtual MESP’s have been less effective than when they were in-person. An argument can be made that the litigants need the motivation of being physically present in court to assist them in reaching the resolution of their case. There is no question that litigants benefit from the judge’s comments (when they are provided) and that the added solemnity of being in an actual courthouse, as well as the investment of time spent actively participating in their own divorce, motivates litigants to make necessary compromises so that their case can be resolved. However, if that is true, it is the authors’ opinion that the in-person attendees should be limited to those who actually have a stake in the case, i.e., the litigants and their attorneys. There is absolutely no additional benefit to that process when panelists are present in court.
We must remember that the anecdotal comment that “stuff happens” when people are in court is not a sufficiently scientific basis to overcome the clear advantages to a fully virtual or hybrid arrangement. Litigants have many opportunities to experience the solemnity and possibly imposing nature of the court if their case does not settle (i.e., case management conferences, motion practice and intensive settlement conferences, just to name a few). There is no need to unnecessarily inconvenience volunteers to make the MESP one of those experiences. Every alleged advantage raised by the very small minority of attorneys who believe MESP’s should be fully in person can be achieved without the panelists physically in court. Further, there are negatives in any approach, not just fully remote MESP’s. A litigant not giving full attention during a Zoom MESP is no different than a litigant doing the same thing when physically present in court. These issues can and are routinely addressed by MESP panelists. Lastly, some question the effectiveness of MESP’s in general, whether remote or not. If MESP’s have become a “check-the-box” event, then why inconvenience panelists to appear in person for such an event?
In fact, as just two examples, numbers have actually improved slightly in Atlantic and Ocean counties during the pandemic after they switched to an all-remote format in lieu of in-person appearances. In Atlantic County, the court and panelists have spent the last year revamping their MESP process to provide guidelines and protocols for the virtual format. Since then, and with the addition of a judge’s colloquy to the litigants via Zoom (that they are required to attend on the morning of the MESP), they have seen some improvement in statistics. In a March 11 letter to the Administrative Office of the Court from chair of the Ocean County Bar Association’s Family Law Committee, statistics were provided that reflected the improved numbers during virtual MESP’s. The letter went on to state that, “I should also note, ESPs in Ocean County are conducted with one panelist on the panel. The panelist will ordinarily have one or two panels during their panel day. The panelist meets with both counsel and the parties. Prior to the pandemic, the panelist would be assigned a case the morning of the ESP date and would receive the court’s file at that time. If the parties prepared ESP Statements, the panelist would receive it that morning as well. However, since the pandemic and the initiation of remote ESPs, the panelist is assigned the case at least a week in advance. The panelist is provided ESP Statements, CIS’s, Orders, etc. by counsel or the self-represented parties in advance. I have personally found this to be immensely helpful in settling cases because I have been afforded more time to prepare.”
In Bergen County, according to the MESP chairperson, since the panels have gone totally remote there have been few calls from panelists requesting help to find a substitute. In addition, there are many issues that have been eliminated by staying remote. For the 2022-2023 year in Bergen County, there are 55 panels with three volunteer panelists per panel. Panelists, litigants, court personnel and judges have all worked together to make this a successful program. They wish to remain remote in Bergen County.
Although it is generally acknowledged that nothing can fully replace the in-person experience for the litigant, it is believed that if an MESP panelist is required to appear in-person, participation will plummet and could bring the process to a standstill. It should be noted that it remains the majority opinion of the statewide panelists that MESP’s should remain fully remote.
The authors suggest that in the event of a mandate for MESPs to return in person in any county, the courthouse should be able to arrange for a laptop or other technology to be placed in a panel room so that panelists may appear virtually while the litigants and their attorneys are physically present. Alternatively, if the court cannot accommodate a computer, the panelists can appear via telephone with some conference-call technology. There is no real need for the litigants or their attorneys to see the panelists. However, these alternatives are only secondary. The authors strongly urge that MESP’s remain entirely remote for all involved.
There was a recent push by the Early Settlement Panel Chairs Statewide Organization to provide various benefits to panelists in consideration for their substantial contribution, including but not limited to, Madden exemptions or other pro bono credits and/or continuing legal education (CLE) credits. All these proposals were rejected by the Administrative Offices of the Court (AOC) and the New Jersey Supreme Court. At the very minimum, if a certain county court insists upon a return to in-person MESP’s, the accommodation of a hybrid approach to MESP’s should be the rule statewide. By now, all of us have mastered the Zoom process (at least when wearing our panelist hats rather than our litigator hats) have seen how much more convenient life can be when paneling cases from the comfort of our own offices. The overwhelming majority of MESP panelists across the state believe that, and at a minimum, panelists should not have to attend any MESPs in person. An MESP panelist has already spent a great deal of time reading memos, discussing the matter with co-panelists and otherwise preparing in advance of the MESP. There is no reason to further burden volunteers by requiring their physical presence in the courthouse when there is absolutely no benefit to it.
Despite the impact of the global pandemic, a silver lining emerged in that lawyers in this profession were given the opportunity to learn more efficient ways to meet tasks in the practice of law. We must ask ourselves what is worth returning to when it comes to in-person appearances. Blind adherence to tradition and doing things the way we used to do them is no basis to continue old ways when we’ve learned of a better way. It is respectfully submitted that MESPs are not one of those appearances necessitating an in-person presence. The burden both in time and cost is not something that should be borne by the client, the attorneys, or the panelists.
Charles F. Vuotto Jr. is the Editor in Chief of the New Jersey Family Lawyer and Of Counsel with Starr, Gern, Davison & Rubin in Roseland. Jeralyn L. Lawrence is President of the New Jersey State Bar Association and Founding Member of Lawrence Law in Watchung. Special thanks is given to the following individuals contributing to this column: Lisa M. Radell of Cape May Court House; Stephanie Albrecht-Pedrick of the Law Offices of Stephanie Albrecht-Pedrick in Pleasantville; Gregory B. Thomlinson of the Law Office of Matthew R. Abatemarco in Manasquan; and Linda H. Schwager, Chairperson of the Bergen County MESP.
 See Pandemic Task Force Practice of Law Subcommittee Final Report. Specifically, recommendations pertaining to family law are found on pages 9 through 11 as to Early Settlement Panels, the report states, “Early Settlement Panels are successfully conducted via video conferencing and should remain as such. They are efficient, work well and save clients time and money. Panelists are able to stagger the panels scheduled for the day, receive submissions electronically and coordinate several virtual rooms for clients and attorneys.”
 The pertinent part of the letter stated, “The data supports the concerns outlined herein. For example, in 2019, prior to the pandemic, the Ocean County MESP program resulted in the settlement of 116 out of 372 MESPs (31.18% settlement rate). However, in 2020, the settlement rate increased to 36.26% (99 out of 273 MESPs resulted in settlement). This percentage is even more apparent when comparing the 2020 in-person MESP settlement rate of 35.14% (26 out of 74 in person MESPs settled) with the 2020 remote MESP settlement rate of 36.69% (73 out of 199 remote MESPs settled). The settlement rate continued to increase in 2021 to 36.80% (124 out of 337 remote MESPs settled).”
In 2022, for the month of January, the settlement rate is 42.11% (8 out of 19 remote MESPs settled).”
 See Editor-in-Chief’s Column “MESP Panelists Should Receive Pro Bono for Exemption” by Charles F. Vuotto, Jr. (38 NJFL 4 (June 2018)