Almost one century ago, Congress addressed a history of perceived judicial hostility to arbitration by adopting the Federal Arbitration Act, 9 U.S.C.A. §§1-16, to "make valid and enforceable" written arbitration provisions. 9 U.S.C. §2. The New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -36, was enacted 70 years ago. Despite decades of arbitration, questions persist regarding the Appellate Division's role regarding arbitration agreements and resultant awards.  For example, the threshold question of when to allow appellate review of the enforceability of arbitration agreements has only recently been resolved, and, the relationship between arbitration and the appellate courts continues to evolve.

Rule 2:2-3(a) establishes the parameters for an appeal "as of right" to the Appellate Division, essentially limiting that right to appeals from judgments that are final as to all parties and all issues. This standard proved problematic when parties disagreed on whether their dispute was governed by an arbitration provision. As a result of amendments that followed the Supreme Court's decisions in Wein v. Morris, 194 N.J. 364, 380 (2008), and GMAC v. Pittella, 205 N.J. 572, 586 (2011), Rule 2:2-3(a)(3) now provides that "any order either compelling arbitration … or denying arbitration" is appealable as of right. Moreover, such appeals are given preference in calendaring. Rule 2:11-1(a).

Still, some claims and parties remain left out of such an appeal because they are not subject to the arbitration agreement. Additional rule amendments, adopted within the last decade, rescued them from litigation limbo. Rule 2:9-1(a) created an exception to the general rule, which strips a trial court's jurisdiction over all matters, except for enforcement and correction, once the Appellate Division assumes jurisdiction. The rule requires trial courts to retain jurisdiction over claims and parties that remain once an appeal is taken from orders granting or denying arbitration. Then, Rule 2:9-5(c) authorizes any party to request a stay of the trial court proceedings pertaining to such claims or parties pending appeal, and permits any party subject to the order compelling arbitration to request the trial court stay an order for arbitration pending appeal.