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The coronavirus pandemic has closed state and federal courts for many purposes and heightened the problem of crowded courts. Our New Jersey federal court is woefully understaffed. The state court system also has had a problem in filling vacancies. Delays in our courts will become even more severe, once the pandemic passes and public bench and jury trials resume, despite the best efforts of judges, staff, and lawyers to resolve matters remotely by Zoom or other process. Pandemic lawsuits regarding contract and lease breaches will exacerbate the challenges our courts face.

Lawyers, judges, ADR providers, and bar associations have suggested that mediation and arbitration may help to clear cases in the interim. It is not just that ADR generally allows parties to resolve their disputes more quickly and efficiently than courts. Of particular note during the pandemic, both mediation and arbitration are considered "private"—a potential solution to the backlog of court cases that require public access. Parties can agree to have their disputes resolved in "remote" video hearings and conferences to avoid court delays.

Given that context, it is interesting to read an editorial published in the New Jersey Law Journal in 1923 (46 N.J.L.J. 323, 324) extolling the virtues of an arbitration act passed that year in New Jersey—two years before the United States Arbitration Act (now the Federal Arbitration Act):

"[The Act] will eliminate seventy percent of the litigation clogging the Courts. The Act would also prevent cases running four or five years before a decision could be reached … and prevent either of the parties in a controversy stopping proceedings when they felt matters were going against them."

A distinguished arbitration scholar, Seton Hall Law professor James B. Boskey, noted (in 1977) the innovations in the 1923 New Jersey Act, similar to those in the New York arbitration act of 1920, now Article 75 of the NY CPLR. Boskey, A History of Commercial Arbitration in New Jersey (Part II), 8 Camden L.J. 284, 287 (1977). He also suggested that New Jersey courts had taken a more pro-arbitration stand than New York and many other U.S. courts. New Jersey's "minority view" under the common-law, at least since Wolff v. Liverpool & London Insurance Co. in 1888, had enforced pre-dispute arbitration agreements so long as arbitration was made a condition precedent to bringing an action on the claim in court—a requirement for enforcement eliminated in the 1923 Act and (in New Jersey) since.

The longstanding New Jersey support for enforcing arbitration contracts was on display in our Supreme Court's July 14, 2020, opinion Colon v. Strategic Delivery Solutions, LLC, when it noted the retroactivity to 1923 of the current (2003) Revised Arbitration Act. Even before the 1925 FAA, both New York and New Jersey enforced pre-dispute arbitration agreements—despite any common law qualifications. Thus, as in Colon, arguments that the FAA field-preempted state courts from enforcing their own arbitration statutes were unavailing. Where federal law might not be applicable to an employment relationship by reason of the exemption in section one of the FAA, Congress would have known in 1925 that the 1923 New Jersey Act would still be available to enforce parties' arbitration agreement.

The 1923 New Jersey Act also resolved a dispute still pending before the New Jersey Supreme Court in Flanzman v. Jenny Craig, Inc.—can a court compel arbitration over another's objection, where the parties' contract had not chosen an arbitrator, arbitral forum, or means of selecting either? In terms familiar to a reader of section 11 of the New Jersey Revised Uniform Arbitration Act of 2003 and section 5 of the FAA, the 1923 Act provided (almost a hundred years ago) that "[if] the agreement made no provision for selection of the arbitrator or arbitrators, the court was authorized to name a single arbitrator to determine the action." Boskey, supra, at 290, citing Act of Mar. 21, 1923, ch. 134,  § 4, [1923] New Jersey Laws 292.