The right to a trial by jury in civil cases is guaranteed by the federal and New Jersey constitutions. However, like other constitutional rights, it may be waived. For example, the right to a jury trial may be waived inadvertently by failure to make a timely demand. See R.??4:35-1. Many businesses seek to purposefully avoid jury trials by entering into predispute contracts that specifically waive the right to a jury trial or implicitly waive that right by requiring that all disputes be decided by arbitration. Businesses may prefer arbitration because it can be faster, cheaper and less formal. They may also seek to avoid juries because of their belief that emotional appeals by plaintiffs can lead to excessive verdicts.
Arbitration Provisions
Public policy favors arbitration, as evidenced by the Legislature’s enactment of the Arbitration Act, N.J.S.A.??2A:23B-1, et seq. Consequently, our courts have readily enforced predispute agreements compelling arbitration based upon this public policy and freedom to contract. Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006). Contractual provisions compelling arbitration have been upheld even in cases involving contracts of adhesion. See, e.g., Gras v. Associates First Capital, 346 N.J. Super. 42 (App. Div. 2001), certif. denied, 171 N.J. 445 (2002). Courts have enforced arbitration agreements contained in various types of contracts, including loan documents (Gras), cell phone agreements (Curtis v. Cellco P’ship, 413 N.J. Super. 26 (App. Div. 2010)), employment contracts (Martindale v. Sandvik, 173 N.J. 76 (2002)), and separation agreements concerning child support (Faherty v. Faherty, 97 N.J. 99 (1984)). In Kamaratos v. Palias, 360 N.J. Super. 76 (App. Div. 2003), although the court refused to enforce an arbitration provision in an attorney’s fee agreement because it was not clear, the court suggested that it would enforce such a provision in a clearly drawn fee agreement.
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