(Ret.) Honorable Katherine Dupuis

While the pandemic continues to impact individuals and businesses, efforts to bring a sense normalcy back to daily life are apparent across the state.  One such effort is the reopening of New Jersey Courts.  While this is happening, the reopening is occurring  slowly.

Back in June, 2020 a three phase plan was instituted by the Administrative Office of the courts. Phase One was to have fully remote operations. While Phases Two and Three had gradual increase in the number of judges and staff who would be permitted on site. Phase Two was capped at 10 – 15% while Phase Three permitted 50-75 % of judges and staff to return. However, the judiciary found it necessary to amend their original plan and institute Phase 2.5 which permitted a maximum of 25% of judges and staff to return.  We currently remain in Phase 2.5 and there is no set date for Phase Three to take effect.

Phases 1 through 2.5 have seen matters such as simple matrimonial trials, chancery and probate matters be conducted by zoom or similar virtual platforms. A handful of civil jury trials have also been able to have been conducted statewide.  A new directive allows for criminal and civil jury selection and trials on site while allowing judges to use their discretion to bring in matters into their courtrooms.

ALTERNATE Dispute Resolution of Business Claims

Business conflicts arise in a myriad of different situations, such as:  minority shareholder claims, dissolution, allegations of  self dealing, breach of fiduciary duty, and violations of restrictive covenants. Additionally, minority partners may allege they have been shutout of the business, or a stockholder may seek greater access to internal investigations. Individuals may also seek to have their interests bought out. Even where there is a governing document dealing with dissolution, there is frequently a dispute as to how it applies in a given situation. Any of these claims expose the business entity to damages and the high cost of litigation. Beyond that, there is the concern that corporate secrets or methods of doing business will be exposed to competitors. There may be concern that questionable tax practices may come to the attention of the court.  Even if there is a confidentially order in effect, it is likely that the competitor will learn of the dispute and take advantage of the turmoil within the company. Similarly, an individual suing a business entity risks being labeled a trouble maker and having their business reputation compromised.

Mediation presents a more efficient, less expensive, and confidential method to resolve these disputes. The parties can agree on the ground rules for the mediation. Mediation can be undertaken immediately with the mediator permitting some discovery, or it can be started after the parties have already commenced litigation. The mediator can work with accountants, as necessary. Mediation is a viable solution when dealing with a problem of a small business and also when dealing with more complex issue such as interlocking corporations and closely held family businesses.