a. An alternative resolution proceeding shall be conducted by a single umpire unless otherwise expressly provided for in the agreement. If the agreement designates a person or persons, the person or persons named shall conduct the proceeding. If a method is provided in the agreement for appointing one or more umpires to conduct the alternative resolution proceeding, it shall be followed; but, if no method is provided, or if a method is provided and a party fails to avail himself of that method, or if for other reasons there is a lapse in the naming of an umpire or in filling a vacancy, the Superior Court shall in a summary action appoint the umpire. Any umpire so appointed shall serve with the same powers as if specifically designated.
b. Unless otherwise provided for in the agreement, or set by the parties at the commencement of the proceeding, the court shall set the umpire's hourly fee.
c. An umpire is not competent to testify in any subsequent proceeding arising out of or related to an alternative resolution proceeding in which the umpire served, except for an action brought against the umpire pursuant to subsection d. of this section.
d. An umpire shall be immune from any claim for damages arising out of a proceeding in which the umpire served unless the award is overturned for the reasons set forth in paragraph (1) of subsection c. of section 13 of this act and there is a finding that the umpire participated in such wrongful conduct. Upon such a finding, a separate civil action or proceeding may be instituted against an umpire.
e. A finding that an umpire participated in wrongful conduct proscribed in paragraph (1) of subsection c. of section 13 of this act which results in the award being overturned, shall not be admissible as evidence in any subsequent action against the umpire, nor shall it establish any fact as a claim of res judicata. The wrongful conduct shall be proved de novo in any subsequent action or proceeding where the issue arises.
L. 1987, c. 54, s. 9.
a. Each party shall be entitled to discovery by way of oral deposition, including videotape deposition, inspection and copying of all relevant documents within the care, custody or control of a party or witness, and interrogatories when authorized by leave of the umpire. Except as provided herein, the rules of the Supreme Court governing discovery shall be applicable.
b. All discovery shall be completed within 60 days following receipt of the demand for alternative resolution or the entry of a final order compelling alternative resolution. The umpire shall have the authority to extend the time for completion of permitted discovery or to limit or terminate any permitted discovery upon application which can be heard in any suitable way, including telephone conference or on submitted papers. The decision of the umpire shall be subject to modification upon review by the Superior Court in a summary review as provided for by rules of the New Jersey Supreme Court when the umpire is shown to have improperly exceeded his discretion.
c. Reasonable production of documents at any oral deposition upon notice in lieu of subpoena given to a party may be required.
d. A notice for inspection and copying of documents provided for in this act may require that the same shall be produced no sooner than 15 days after receipt of service. The cost of copying shall be paid by the party demanding the inspection.
L. 1987, c. 54, s. 10.
2A:23A-11 Hearing by umpire; witnesses; subpoena; factual, legal contentions.
11. a. When more than one umpire is agreed upon, all the umpires shall sit at the hearing of the case, unless by written consent, all parties agree to a lesser number.
b.The umpire conducting an alternative resolution proceeding may require the attendance of any person as a witness and the production of any book or written instrument. The fees for the attendance shall be those allowed witnesses in a civil action.
c.Subpoenas shall issue in the name of and be signed by the umpire, or if there is more than one umpire, by a majority of them, and shall be directed to the person therein named and served in the same manner as a subpoena to testify before a court of record. If a person subpoenaed to testify refuses or neglects to obey a subpoena, the Superior Court, upon application, may compel his attendance before the umpire or hold the person in contempt as if the person had failed to respond to a subpoena issued by the court.
d.In alternative resolution proceedings held under this act, parties shall not be bound by the statutory and common law rules of evidence, except as provided for conduct of contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.); provided, however, that all statutes and common law rules relating to privilege shall remain in effect. In any case when no rule, procedure or practice applies to the offer of evidence or procedure to be adopted, the umpire shall proceed so that the informality of the proceedings is assured.
e.Each party to an alternative resolution proceeding shall submit to the umpire and his adversary a statement of the party's factual and legal position with respect to the issues to be resolved, at a date fixed by the umpire to permit proper preparation for all hearings. The submitted statement shall govern, control and limit the facts and legal issues to be determined in the alternative resolution proceeding. Amended or supplemental legal and factual statements may be filed as permitted by the umpire where the same will not unduly prejudice the other party to the proceeding.
f.In an alternative resolution proceeding when the umpire is of the opinion that evidence by impartial experts would be of assistance, the umpire may direct that expert evidence be obtained. The fees and expenses of expert witnesses shall be paid by the parties as directed by the umpire.
g.Unless otherwise provided by the agreement for alternative resolution:
(1)The umpire shall appoint a time and place for the hearing and cause notification to the parties by personal service or by certified mail, with return receipt requested, not less than five days before the hearing. Appearance at the hearing waives the notice requirement. The umpire may adjourn the hearing from time to time as necessary and, on request of a party and for good cause, or upon their own motion, may postpone the hearing to a time not later than the date fixed by the agreement for making the award, unless the parties consent to a later date. The umpire may determine the controversy upon the evidence produced, notwithstanding the failure of a party duly notified to appear. The Superior Court, on application in any pending summary proceeding, may direct the umpire to proceed promptly with the hearing and determination of the controversy.
(2)The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.
(3)The hearing shall be conducted by all the umpires, but a majority may determine any question and render a final award. If, during the course of the hearing, an umpire for any reason ceases to act, the remaining umpires appointed to act may continue with the hearing and determination of the controversy.
L.1987,c.54,s.11; amended 2003, c.95, s.33.