                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3518-17T4

DAVID A. FORMAN,

          Plaintiff-Respondent,

v.

AMY LEVENSON,

          Defendant-Appellant.


                    Submitted December 9, 2019 – Decided January 22, 2020

                    Before Judges Fasciale, Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-1773-10.

                    Hegge & Confusione, LLC, attorneys for appellant
                    (Michael James Confusione and Liz C. Kramer, of the
                    Minnesota bar, admitted pro hac vice, of counsel and
                    on the briefs).

                    Laufer, Dalena, Jensen & Bradley, LLC, attorneys for
                    respondent (Terryann K. Bradley and Alyssa Marie
                    Clemente, on the briefs).

PER CURIAM
      In this matrimonial case, defendant appeals from a March 23, 2018 order

denying her motion to vacate an arbitrator's award. 1 Although plaintiff cross-

appealed from the same order, which denied his motion for counsel fees, he has

waived his cross-appeal for failure to make any argument regarding counsel

fees.2 Defendant primarily argues the arbitration agreement was invalid, the

Arbitrator exceeded the scope of his powers, and plaintiff engaged in fraud. We

disagree and affirm.

                                        I.

      In 2011, the parties divorced and entered into a marital settlement

agreement (MSA). Three years later, they returned to court on motions related



1
  On today's date, we released our opinion in Forman v. Levenson (Forman II),
No. A-0238-18 (App. Div. Jan. 22, 2019) (slip op. at 1). In that action, defendant
appealed from paragraphs one and three of an August 31, 2018 order partially
denying reconsideration of a June 12, 2013 order pertaining to child support ,
and a September 18, 2018 order, which amended defendant's child support
obligation. A different judge entered those orders and rendered a written
statement of reasons.
2
   See, e.g., Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
(stating "[a]n issue not briefed on appeal is deemed waived"); 539 Absecon
Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App.
Div. 2009) (indicating appeal of trial court decisions identified in notice of
cross-appeal but not briefed deemed abandoned). Accord N.J. Dep't of Envtl.
Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) (finding
that party waived issue on appeal that it raised "[i]n a single sentence in its
brief," without any legal argument).
                                                                          A-3518-17T4
                                        2
to the MSA, and in September 2014, they entered into a consent order

(September 2014 CO), agreeing to retain a retired judge who would serve as a

mediator on a reimbursement issue, then as a binding arbitrator on that issue if

necessary. They also agreed that other issues (including payment of ongoing

expenses into a trust, parenting time, and imputation of income) would be

determined by the court if they could not reach an agreement. The parties

selected Judge Michael K. Diamond, a retired judge (the Arbitrator).

      In April 2015, after having resolved a number of financial issues, the

parties entered into another consent order (April 2015 CO), agreeing to binding

arbitration on child support "to be paid from plaintiff to defendant," and the

children's cell phone expenses. The April 2015 CO provided that any future

disputes "as to payment of the children's expenses on a going forward basis"

would be submitted "on an annual basis to [the Arbitrator], or his successor . . . ,

for a determination of reimbursement from one party to the other[,] and . . . an

appropriate sanction for non-payment at his discretion."

      In December 2016, the Arbitrator entered an order regarding child

support, expenses, and credits (December 2016 order). It stated "[t]he scope of

Arbitration in this matter shall be limited to . . . any credits due by . . . plaintiff

or defendant to the other for expenses incurred as outlined" in the specific sub-


                                                                               A-3518-17T4
                                          3
paragraphs of the MSA concerning use of the children's 529 plans and to the

allocation of costs for the children's health insurance and health care,

extracurricular activities, summer camp, and education. Later that month, after

fully discussing the matter with counsel, the parties entered into another consent

order (2016 arbitration agreement), which stated:

            By executing this [2016 arbitration agreement], the
            parties also acknowledge that they have read same
            before executing it, that they have discussed all terms
            with counsel, and that they have given independent
            reflection and judgment to the terms and provisions of
            this Order before executing it and agree to be bound by
            same.

      The 2016 arbitration agreement noted that it "shall constitute a waiver by

the parties of the right to trial or review by the [c]ourt, except as specifically

provided herein of N.J.S.A. 2A:23-B, et. seq. or by the terms[,]" and that the

waiver was voluntary and "done without coercion or duress."            The 2016

arbitration agreement provided:

            All issues that could have been raised and adjudicated
            by the [c]ourt in the New Jersey Superior Court, Family
            Part – both interim and final – shall be subject to the
            jurisdiction of and determination by the [A]rbitrator
            pursuant to the terms and procedures of this Order. The
            [A]rbitrator shall determine whether an issue or dispute
            is within the scope of his jurisdiction.

The 2016 arbitration agreement added the following handwritten provision:


                                                                          A-3518-17T4
                                        4
              The parties recognize that the attempt at mediation of
              rema[in]ing issues was unsuccessful [and] therefore,
              they have agreed to proceed by way of arbitration of the
              issues to be resolved.

              A. If the parties want a stenographer at the hearing, the
              cost of same shall be shared equally.

              B. See [December 2016 order] as to the scope of the
              hearing.

        The parties also agreed that "[n]othing in [the 2016 arbitration agreement]

shall prevent the Arbitrator, with the written consent of the parties to arbitration,

from mediating an issue or issues submitted, and such agreed-upon mediation

shall not disqualify the Arbitrator from arbitrating the issue(s) should mediation

not be successful." It further stated that "[t]he parties agree to be bound by the

final decision of the Arbitrator, both as to Findings of facts and Conclusions of

Law."

        In early May 2017, the Arbitrator noted that he and the parties "had sort

of a mediation all day long, trying to resolve certain issues," but they "were

unable to do that," so they proceeded with arbitration. Two months later, the

Arbitrator ordered plaintiff to pay defendant "for reimbursement of the

children's expenses[,] the sum of $8529.26 in settlement of all of the claimed

expenses by each party." In August 2017, he held that the parties' dispute

regarding $1,249,500 in settlement monies paid to defendant by her former

                                                                             A-3518-17T4
                                         5
employer (the Barclays settlement) was within the scope of arbitration.             In

November 2017, he entered judgment on that dispute in plaintiff's favor

(November 2017 order). In February 2018, the Arbitrator issued a decision

(February 2018 decision), denying defendant's request to modify the terms of

the MSA regarding parenting time and financial issues and awarding plaintiff

$15,000 in legal fees.

      Defendant filed a motion with the judge to vacate the November 2017

order, and other arbitration awards, which plaintiff moved to confirm. The judge

held a hearing on March 23, 2018 and observed what appeared to be a

mathematical error in the November 2017 order. The judge then sent that issue

back to the Arbitrator for explanation, 3 and in all other respects, the judge upheld

the Arbitrator's decisions and entered the order under review (March 2018

confirmation order).

                                         II.

      We begin by addressing defendant's contention that the arbitration

agreement was invalid.       She argues the agreement—to which she never

objected—failed to meet the requirements of Rule 5:1-5(b). However, applying


3
  The Arbitrator corrected the mathematical error by order dated April 2, 2018,
amending the award entered in the Barclays settlement dispute in favor of
plaintiff from $326,972.57 to $344,972.58.
                                                                             A-3518-17T4
                                         6
a de novo review of the arbitration agreement's legality, the record contains

sufficient information for us to agree with the judge that the procedures utilized

substantially followed court rules.

      Rule 5:1-5, which became effective on September 1, 2015, applies to

agreements or consent orders to arbitrate disputes in the Family Part. The rule

requires the agreement or consent order to state the following:

            (i) the parties understand their entitlement to a judicial
            adjudication of their dispute and are willing to waive
            that right;

            (ii) the parties are aware of the limited circumstances
            under which a challenge to the award may be advanced
            and agree to those limitations;

            (iii) the parties have had sufficient time to consider the
            implications of their decision to arbitrate; and

            (iv) the parties have entered into the Agreement or
            Consent Order freely and voluntarily, after due
            consideration of the consequences of doing so.

            [R. 5:1-5(b)(3)(A).]

      The 2016 arbitration agreement—which satisfies this rule—reflects that

the parties discussed its terms with counsel. It said "that they have given

independent reflection and judgment to the terms and provisions," and that it

"shall constitute a waiver by the parties of the right to trial or review by the

[c]ourt, except as specifically provided" by statute, and that the waiver was

                                                                          A-3518-17T4
                                        7
voluntary and "done without coercion or duress." Although Rule 5:1-5(b)(3)(A)

and the sample agreement in Appendix XXIX-B use somewhat different

language, the thrust of the provisions is the same, namely, to assure that the

parties entering into arbitration do so voluntarily and knowingly.

                                       III.

      We reject defendant's contentions that the Arbitrator exceeded his

authority by: (1) acting as both a mediator and arbitrator; (2) assuming the

duties of an arbitrator "[b]efore the [a]rbitration [a]greement [e]xisted";

(3) determining an issue outside the scope of arbitration; and (4) conducting an

"[i]ndependent [f]actual [i]nvestigation."

                                       A.

      In Minkowitz v. Israeli, we considered "the compatibility of the same

party assuming the role of mediator and arbitrator," and held that "absent the

parties' agreement," an arbitrator "may not assume the role of mediator and,

thereafter, resume the role of arbitrator." 433 N.J. Super. 111, 142 (App. Div.

2013). We noted that an inherent conflict exists between the role of mediator

and arbitrator, largely because mediators "may become privy to party

confidences in guiding disput[es]" and "are not limited to developing the facts"

based on the testimony and evidence submitted. Id. at 142-43. By contrast, the


                                                                        A-3518-17T4
                                        8
role of an arbitrator "is evaluative," who "essentially weigh[s] evidence,

assess[es] credibility, and appl[ies] the law when determining whether a party

has proven his or her request for relief." Id. at 144. This court explained:

            Based on our review of the distinctly different
            proceedings of arbitration and mediation, we conclude
            the positions of arbitrator and mediator are in conflict.
            An arbitrator must "maintain 'broad public confidence
            in the integrity and fairness of the [arbitration]
            process.'" If the same person acts as a mediator, obtains
            party confidences or offers opinions on the issues in
            dispute, a conflict arises were he or she to then switch
            roles to act as an arbitrator, making the final call. We
            find the need for an arbitrator's complete objectivity
            bears heavily on the integrity of the arbitration process.
            This concern becomes even more problematic when
            arbitrating matrimonial disputes between already
            suspicious adverse parties.

            [Id. at 146-47 (alteration in original) (citations
            omitted).]

      This court concluded that "[a]bsent a specific agreement clearly defining

and accepting the complementary dispute resolution professional's roles, dual

roles are to be avoided." Id. at 147. Because the arbitrator in Minkowitz guided

a mediation and then assumed the role of arbitrator without the parties' consent,

this court held that he exceeded his powers. Id. at 148.

      Here, unlike Minkowitz, the parties affirmatively agreed to the

Arbitrator's dual role.   Defendant argues the waiver language in the 2016


                                                                          A-3518-17T4
                                        9
arbitration agreement is insufficient, but the waiver justifying the Arbitrator's

initial assumption of the dual role occurred prior to December 2016. In the

September 2014 CO, the parties agreed that the issue of certain child-related

expenses would be resolved "by retaining a retired family court judge to serve

as mediator and then binding arbitrator on the issue," clearly anticipating that

one retired judge would perform both roles.        The Arbitrator successfully

mediated some issues, memorialized in the April 2015 CO, which also provided

that certain unresolved issues would be submitted to him as arbitrator. Thus,

the parties' waiver is enforceable.

      Moreover, in the 2016 arbitration agreement, the parties agreed to proceed

to arbitration with the Arbitrator regarding the same expense-related issues that

he unsuccessfully attempted to mediate. They also agreed that nothing in the

2016 arbitration agreement would "prevent the Arbitrator, with the written

consent of the parties to the arbitration, from mediating . . . issues submitted,

and such agreed-upon mediation shall not disqualify the Arbitrator from

arbitrating the issue(s) should mediation not be successful." Defendant argues

that the Arbitrator's "move back to service as a mediator in May of 2017" was

improper because the parties did not give the written consent required by the

2016 arbitration agreement. However, the record does not establish that the


                                                                         A-3518-17T4
                                      10
Arbitrator mediated in May 2017. On the first day of the arbitration hearing, he

simply remarked that the day before he and the parties "had sort of a mediation

all day long, trying to resolve certain issues," but they "were unable to do that."

"Sort of a mediation" describes the type of pre-trial settlement discussions trial

judges often facilitate, and this would not give rise to the inherent conflict that

concerned the Minkowitz court.

      Even if the Arbitrator acted as a mediator the day before the arbitration

hearing commenced, the judge's finding that defendant waived any objection to

the dual role was correct. Nothing in the record suggests that defendant objected

to the Arbitrator conducting the "sort of a mediation" on May 9, 2017, and then

proceeding to arbitration on May 10, 2017.         Defendant did not raise any

Minkowitz concerns until her efforts in the trial court to vacate the arbitration

awards.

      Tellingly, paragraph 12 of the proposed arbitration agreement contained

in Appendix XXIX-B details the parties' options regarding the Arbitrator's roles,

from prohibiting any dual role at all to permitting the Arbitrator to act as either

a "settlement facilitator" or mediator.      Appendix XXIX-B at 6-7.           The

paragraph's note explains that the parties should expressly agree to any dual role,




                                                                           A-3518-17T4
                                       11
but it also notes that "[f]ailure to object to the mediator resuming the role of

arbitrator is deemed a waiver of the right to object." Appendix XXIX-B at 7.

      Prior to executing the 2016 arbitration agreement, the parties expressly

opted to proceed with the same person as mediator and arbitrator regarding

select expense-related issues. Then, in the 2016 arbitration agreement, the

parties acknowledged that fact and agreed that they might consent going forward

to that person functioning in a dual role again.       Although consent to any

resumption of that dual role in May 2017 was not memorialized in writing, the

parties acquiesced to proceeding with a "sort of a mediation" followed by

arbitration. Under these circumstances, defendant waived any objection to the

Arbitrator's dual role.

      Defendant also contends that the Arbitrator's dual role was improper

because defendant "confided" in him⸺as a mediator⸻that "she was in severe

financial distress due to her inability to receive reimbursements from [plaintiff]

for the children's expenses and her inability to earn at her previous level because

of significant health issues." She states that the Arbitrator's subsequent delay in

deciding the reimbursement issue left her "no longer able to afford counsel" and

forced her to represent herself "to her detriment."




                                                                           A-3518-17T4
                                       12
      Even when the dual role of mediator and arbitrator is allowed,

"information learned by an arbitrator during the mediation process but not

presented at the arbitration hearing may not be considered by the arbitrator in

rendering the final decision." Twp. of Aberdeen v. Patrolmen's Benevolent

Ass'n, Local 163, 286 N.J. Super. 372, 373-75 (App. Div. 1996) (holding that

arbitration award should be vacated where arbitrator considered and was

influenced by information presented solely during mediation).

      Defendant did not previously raise the issue of the Arbitrator allegedly

using "confidences." Indeed, following arbitration, defendant filed a motion to

recuse and disqualify the Arbitrator, contending the Arbitrator's conduct was

improper. However, she did not complain that the Arbitrator obtained or used

confidential information. Thus, the plain error standard applies. R. 2:10-2

(providing that an appellate court will only notice error that is "clearly capable

of producing an unjust result").

      The record contains no certification or other evidence supporting

defendant's allegations regarding the content of her discussions with the

Arbitrator. Even if she told the Arbitrator—like she now contends—about her

finance and health issues, these details also appear in her filings outside the

context of mediation. In other words, there is nothing to suggest that defendant


                                                                          A-3518-17T4
                                       13
told the Arbitrator any information as mediator that was not separately presented

to him as Arbitrator.

      Finally, there is no prejudice even if we assume defendant provided

confidential information to the Arbitrator in his capacity as mediator.

Defendant's suggestion of a link between her financial and health confidences

and the timing of the Arbitrator's actions and decisions is speculative.

Defendant implies that the Arbitrator purposely delayed resolving the matter

with the intent of prejudicing her, but this implication is mere conjecture.

                                       B.

      Defendant argues that the Arbitrator exceeded his authority and showed

"his misunderstanding of the arbitral process" by issuing the December 2016

order, which was written "nearly seven weeks before the [a]rbitration

[a]greement was finalized." But the December 2016 order was unrelated to the

2016 arbitration agreement.

      In issuing the December 2016 order, the Arbitrator was acting pursuant to

the arbitral authority bestowed by the April 2015 CO, not under the as-yet-

unexecuted 2016 arbitration agreement. The April 2015 CO provided that the

parties would submit the issues of child support and the children's cell phone

expenses to the Arbitrator as an arbitrator. It also provided that any future


                                                                          A-3518-17T4
                                       14
disputes "as to payment of the children's expenses on a going forward basis"

would be submitted "on an annual basis to [the Arbitrator]" for resolution. The

December 2016 order specifically dealt with the expense-related issues

earmarked for arbitration by the April 2015 CO. There is no basis to conclude

that, in issuing the December 2016 order, the arbitrator anticipated or exercised

any powers that became effective only when the 2016 arbitration agreement was

executed.

      Defendant contends that the April 2015 CO did not actually provide the

arbitrator with the authority to issue the December 2016 order because the April

2015 CO (1) was "akin to an 'agreement to agree' about arbitration," and (2) did

not have "all the necessary components of an arbitration agreement, including

the requirements of Rule 5:1-5."

      The April 2015 CO, however, was not merely an "agreement to agree."

Although the parties did not know the precise sums that would be at issue "on a

going forward basis" when they signed the April 2015 CO, they unequivocally

agreed to submit their child-related expense disputes to arbitration. To be

enforceable, a contract "must be sufficiently definite 'that the performance to be

rendered by each party can be ascertained with reasonable certainty.'" Weichert

Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting W. Caldwell v.


                                                                          A-3518-17T4
                                       15
Caldwell, 26 N.J. 9, 24-25 (1958)). The April 2015 CO was sufficiently definite

as to the specific financial issues subject to arbitration.

      Defendant's contention that the April 2015 CO failed to include "the

requirements of Rule 5:1-5" is true, but respectfully irrelevant. That rule did

not take effect until nearly five months after the April 2015 CO was entered, and

nothing in the Rule supports the retroactive invalidation of enforceable

arbitration agreements. More fundamentally, even assuming that the April 2015

CO did not provide the arbitrator with the authority to issue the December 2016

order, at the trial level, defendant did not challenge any of the December 2016

order's provisions, nor does she challenge them on appeal. To the contrary,

defendant contends that the December 2016 order controlled the scope of

arbitration.

                                         C.

      The judge noted the 2016 arbitration agreement provided that the

arbitrator could decide "[a]ll issues that could have been raised and adjudicated"

in the trial court, and that the parties long-recognized that "the equitable

distribution of the [Barclays] settlement was an outstanding issue" needing

resolution. The judge found that the Arbitrator did not exceed his authority by




                                                                          A-3518-17T4
                                        16
determining plaintiff's share of the Barclays settlement. We also see no error in

the Arbitrator deciding the Barclays settlement issue.

      Relying on N.J.S.A. 2A:23B-6(b), which provides that "[t]he court shall

decide whether . . . a controversy is subject to an agreement to arbitrate,"

defendant argues the Arbitrator lacked authority to make that determination.

However, the statute expressly provides that "a party to an agreement to arbitrate

or to an arbitration proceeding may waive or, the parties may vary the effect of,

the requirements of this act to the extent permitted by law." N.J.S.A. 2A:23B-

4(a). In the December 2016 CO, the parties agreed that "[t]he arbitrator shall

determine whether an issue or dispute is within the scope of his jurisdiction[,]"

thus, effectively waiving the right to have the court make such a determination.

Moreover, subsection (d) of the statutory provision cited by defendant states:

            If a party to a judicial proceeding . . . claims that a
            controversy is not subject to, an agreement to arbitrate,
            the arbitration proceeding may continue pending final
            resolution of the issue by the court, unless the court
            otherwise orders.

            [N.J.S.A. 2A:23B-6(d).]

The judge independently reviewed the scope of the 2016 arbitration agreement

and concluded that the Arbitrator correctly determined that the Barclays

settlement dispute was within that scope of arbitration. Thus, even if the 2016


                                                                          A-3518-17T4
                                       17
arbitration agreement did not confer on the Arbitrator the right to determine the

scope of the issues to be arbitrated, he nevertheless was permitted to proceed

and determine the Barclays settlement issue, subject to final review and

resolution by the judge.

      Defendant also argues that "[the Arbitrator's] contract analysis was faulty"

because he ignored the principle that "[w]hen both general language of a contract

and specific language address the same issue, the specific language controls [.]"

This is a general principle of contract construction. See, e.g., Bauman v. Royal

Indem. Co., 36 N.J. 12, 22 (1961) (stating "[i]n the interpretation of a contractual

instrument, the specific is customarily permitted to control the general and this

ordinarily serves as a sensible aid in carrying out its intendment"); Homesite

Ins. Co. v. Hindman, 413 N.J. Super. 41, 48 (App. Div. 2010) (referencing "the

well-recognized rule of construction that when two provisions dealing with the

same subject matter are present, the more specific provision controls over the

more general"); Burley v. Prudential Ins. Co. of Am., 251 N.J. Super. 493, 500

(App. Div. 1991) (recognizing "[w]here two clauses in a contract clearly

conflict, the more specific provision . . . usually controls over the more

general").




                                                                            A-3518-17T4
                                        18
      Defendant, however, ignores another principle of contract construction,

namely that "in the event of potentially contradictory terms, 'the several parts of

a contract should be so construed as to avoid conflict.'" Universal N. Am. Ins.

Co. v. Bridgepointe Condo. Ass'n, 456 N.J. Super. 480, 494 (Law Div. 2018)

(quoting Silverstein v. Dohoney, 32 N.J. Super. 357, 364 (App. Div. 1954)).

Similarly, "a subsidiary provision should not be interpreted in such a manner as

to conflict with the obvious or dominant purpose of the contract." Wheatly v.

Sook Suh, 217 N.J. Super. 233, 240 (App. Div. 1987).

      Here, the 2016 arbitration agreement plainly states that "[a]ll issues that

could have been raised and adjudicated by the Court in the New Jersey Superior

Court, Family Part – both interim and final – shall be subject to the jurisdiction

of and determination by the arbitrator[.]" The handwritten notation, "[s]ee

[December 2016 order] as to the scope of the hearing," included as part of the

paragraph acknowledging the Arbitrator's dual role, is more specific. But it need

not be construed as conflicting with the broad grant of jurisdiction. The specific

provision does not reference the December 2016 order as defining the

"exclusive" or "limited" scope of arbitration. Rather, it could be read a s simply

indicating that the hearing will include, but not necessarily be limited to, the

issues specified in the December 2016 order. This reading would harmonize


                                                                           A-3518-17T4
                                       19
with the provision granting jurisdiction of "[a]ll issues that could have been

raised" in court to the Arbitrator, without rendering that provision meaningless.

Accordingly, there was no error in the judge's determination that the Barclays

settlement issue was within the scope of the 2016 arbitration agreement.

                                        D.

      Defendant argues that the Arbitrator "committed misconduct by

conducting an independent investigation of the charging lien" when he contacted

defendant's former counsel "without [defendant's] knowledge or consent." She

complains that she was deprived of the "opportunity to rebut or explain the

evidence" provided by former counsel.          We see no improper conduct or

prejudice. We consider defendant's contention under the plain error standard

since she raised it for the first time on appeal. R. 2:10-2.

      The Arbitrator acted with defendant's knowledge. In July 2017, he wrote

former counsel inquiring as to the status of any lien, and he copied both parties'

counsel. Eleven days later, at the hearing, and with defendant present, the

Arbitrator referenced his letter to former counsel, and defendant acknowledged

the letter by emailing the Arbitrator regarding that letter.

      Most significant, even if the Arbitrator exceeded his powers by contacting

former counsel—which is not the case—that contact did not prejudice


                                                                           A-3518-17T4
                                        20
defendant's rights in arbitration. The Arbitrator noted that defendant had the

burden of establishing the existence and amount of any lien, which defendant

concedes. Defendant testified that the lien was for the entire settlement amount;

the Arbitrator found that her testimony was unpersuasive on this point and that

defendant failed to present any proof of the existence or amount of any recorded

lien. Defendant failed to carry her burden, regardless of the information the

Arbitrator received from former counsel. Indeed, by contacting former counsel,

the Arbitrator provided defendant with an alternative means of proving the

existence of a charging lien. Former counsel's statement that defendant owed

money to her that she was not pursuing did not contribute to defendant's failure

to carry her burden on this point.

                                      IV.

      Defendant argues that the arbitration awards should be vacated because

she was denied discovery, the Arbitrator refused to adjourn the hearing, and the

awards were "procured based on [plaintiff's] fraud with respect to his interests

in multiple family trusts[.]" The judge found that vacating the arbitration award

on these bases was not warranted. Defendant failed to show fraud or arbitrator

misconduct.




                                                                         A-3518-17T4
                                      21
      Although defendant characterizes her position as contending that she was

unfairly denied a postponement and that the arbitration award was the result of

fraud, which would provide bases to vacate the award under N.J.S.A. 2A:23B -

23(a)(1) and (3), the substance of her argument actually concerns the timing and

extent of the discovery to regarding plaintiff's family trusts. Disputes regarding

discovery do not provide a valid basis to vacate an arbitration award.

      The December 2016 order provided that "[e]ach party shall be entitled to

initiate and to complete discovery which shall be conducted in accordance with

the New Jersey Rules of Court. Any and all disputes concerning discovery shall

be submitted to the Arbitrator for resolution." Decisions on discovery matters

are reviewed for abuse of discretion.       Capital Health Sys., Inc. v. Horizon

Healthcare Servs., Inc., 230 N.J. 73, 79 (2017). "[A]ppellate courts are not to

intervene but instead will defer to a trial judge's discovery rulings absent an

abuse of discretion or a judge's misunderstanding or misapplication of the law."

Id. at 79-80 (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

371 (2011)).

      Defendant argues that the Arbitrator should have delayed the final days of

the arbitration hearing, which concluded in November 2017, because she did not

receive the "voluminous" discovery containing a "large amount of information"


                                                                          A-3518-17T4
                                       22
regarding plaintiff's family trusts until September. However, she does not detail

the extent of the discovery received or explain why, even if she was unable to

review it before the September 25 hearing date, the seven weeks between receipt

and the November hearing dates were insufficient. Most significantly, she does

not contend that, had she been granted the requested adjournment, she would

have been able to present a better case or bring additional relevant documents

or information to the Arbitrator's attention.

      Regarding her claims that plaintiff had an undisclosed interest in trusts

other than his father's, defendant acknowledges that this purported "fraud" was

something that she "alleged but could not prove without discovery." However,

she ultimately obtained discovery that she now characterizes as "voluminous,"

and she does not specify what discovery was requested but denied. Similarly,

defendant does not explain what relevant information she would have obtained

through additional discovery, beyond her hope of uncovering evidence of fraud.

Thus, there is no basis to conclude that the Arbitrator's rulings concerning

discovery were an abuse of discretion.

      The sole piece of evidence defendant cites to support her fraud claim is

the plaintiff's mother's trust check, which was made payable to plaintiff and was

written three months after plaintiff's counsel asserted this trust was liquidated.


                                                                          A-3518-17T4
                                       23
However, this alone does not establish fraud, and the Arbitrator was free to

accept plaintiff's explanation that he was not a beneficiary of his mother's trust

and that his name on the payee line of a single check was an error of which he

had no knowledge.

                                        V.

      Finally, defendant argues that the arbitration awards should be vacated

"due to [the Arbitrator's] conduct in the hearing, which substantially prejudiced

[her] rights," and showed "disparate treatment" of the parties.          Defendant

contends that the Arbitrator exhibited preferential treatment toward plaintiff in

various ways.

      First, she states that the Arbitrator allowed plaintiff "to exceed the original

scope of the arbitration" by addressing the Barclays settlement, but he refused

her request "to similarly exceed the scope by investigating the [plaintiff's]

family trusts." The Arbitrator's decision on the scope-of-arbitration-Barclays-

settlement issue did not impact his decision on the scope-of-discovery-trusts

issue. The two were legally and factually unrelated, with the first concerning a

contractual interpretation issue and the second concerning appropriate

discovery. Moreover, the Arbitrator's decisions on both issues was legally




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correct, so the fact that defendant's position did not carry the day on either issue

does not warrant the conclusion that the Arbitrator was improperly biased.

      Second, defendant complains that the judge refused her request for an

adjournment after she received "thousands of pages of new financial

information," even though he granted plaintiff's counsel's "multiple requests for

adjournment." The Arbitrator was justified in denying defendant's request, and

defendant was not prejudiced because of it. Moreover, defendant presents no

details regarding the basis for the "multiple requests for adjournment" that she

says were made by plaintiff's counsel, nor does she explain whether those

requests were made prior to the beginning of arbitration or, like hers, after the

hearing commenced. Thus, there is no basis to conclude that the Arbitrator

granted adjournment requests by plaintiff's counsel that bore any similarity to

defendant's request.

      Third, defendant argues that the Arbitrator's preferential treatment toward

plaintiff can be inferred from the language the Arbitrator used in the February

2018 decision, which she maintains was slanted in plaintiff's favor.            The

language defendant cites, however, reflects the Arbitrator's important credibility

determinations and legal conclusions, which were well-explained and supported.




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                                        25
      Fourth, defendant contends that the Arbitrator imposed "a nearly

impossible high standard of formality in the hearings," given her status as a self-

represented litigant. But she does not suggest that her case was prejudiced

because she was forced to meet this standard or that the Arbitrator would have

had additional relevant evidence or that his decisions would likely have been

different if the proceeding was more relaxed.

      It is well-known that "the scope of review of an arbitration award is

narrow." Fawzy v. Fawzy, 199 N.J. 456, 470 (2009). Indeed, "[a]rbitration can

attain its goal of providing final, speedy and inexpensive settlement of disputes

only if judicial interference with the process is minimized; it is, after all, meant

to be a substitute for and not a springboard for litigation." Id. at 468 (citation

omitted). To that end, "[a]rbitration should spell litigation's conclusion, rather

than its beginning." Borough of E. Rutherford v. E. Rutherford PBA Local 275,

213 N.J. 190, 201 (2013) (first alteration in original) (citation omitted).

      Moreover, "[t]he public policy of this State favors arbitration as a means

of settling disputes that otherwise would be litigated in a court." Badiali v. N.J.

Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015). This "strong public policy" also

favors "using arbitration in family litigation[.]" Minkowitz, 433 N.J. Super. at

131-32. Accordingly, "courts grant arbitration awards considerable deference."


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E. Rutherford PBA Local 275, 213 N.J. at 201. Because the trial judge's decision

to affirm or vacate an arbitration award is a decision of law, our review is de

novo. Minkowitz, 433 N.J. Super. at 136; see also Manger v. Manger, 417 N.J.

Super. 370, 376 (App. Div. 2010).

      N.J.S.A. 2A:23B-23 specifies the limited bases for vacating an arbitration

award, providing:

            a. Upon the filing of a summary action with the court
            by a party to an arbitration proceeding, the court shall
            vacate an award made in the arbitration proceeding if:

            (1) the award was procured by corruption, fraud, or
            other undue means;

            (2) the court finds evident partiality by an arbitrator;
            corruption by an arbitrator; or misconduct by an
            arbitrator prejudicing the rights of a party to the
            arbitration proceeding;

            (3) an arbitrator refused to postpone the hearing upon
            showing of sufficient cause for postponement, refused
            to consider evidence material to the controversy, or
            otherwise conducted the hearing contrary to section 15
            of this act, so as to substantially prejudice the rights of
            a party to the arbitration proceeding;

            (4) an arbitrator exceeded the arbitrator’s powers;

            (5) there was no agreement to arbitrate, unless the
            person participated in the arbitration proceeding
            without raising the objection pursuant to subsection c.
            of section 15 of this act not later than the beginning of
            the arbitration hearing; or

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                                       27
            (6) the arbitration was conducted without proper notice
            of the initiation of an arbitration as required in section
            9 of this act so as to substantially prejudice the rights
            of a party to the arbitration proceeding.

      The court can vacate an arbitration award "only when one of the limited

bases set forth in N.J.S.A. 2A:23B-23 has occurred." Minkowitz, 433 N.J.

Super. at 152 (emphasis omitted). The party seeking to vacate the award bears

the burden of establishing a basis to vacate. Id. at 136; see also Del Piano v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 372 N.J. Super. 503, 510 (App.

Div. 2004) (noting that "because of the strong judicial presumption in favor of

the validity of an arbitral award, the party seeking to vacate it bears a heavy

burden"). Here, defendant has not met these standards.

      Affirmed.




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