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In a landlord tenant case in NJ, should one file a Motion to compel arbitration before the case is heard or should one wait to make that argument orally in front of the judge?

If it is ideal to submit the Motion in advance, what type of motion should be filed? A Motion to Stay the case pending arbitration?

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The statute that explains what kind of motion to file is the New Jersey Arbitration Act. Some background can be found here and in the authorities linked therein. The statute runs from New Jersey Revised Statutes Sections 2A:23B-1 to 2A:23B-32. The main section applicable to filing a Motion is NJRS § 2A:23B-7. The Federal Arbitration Act is also relevant.

Warning: There are lots of technicalities buried in this part of the law.

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One of the major points of arbitration is that it saves the time and cost of going to court. Thus if an arbitration agreement exists, a demand for arbitration should be made well before any planned trial. The arbitration agreement itself should spell out the procedure for bringing an arbitration action, usually some sort of notice sent to the other party.

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  • What happens when the other party opposes the applicability of the arbitration clause? Should the party seeking to compel arbitration wait to make the case before the judge or should it submit it as a Motion in advance? The party has already raised the issue of arbitration with the other side but they have stated that (for whatever reason) they don't think it is relevant (for example, because the lease expired). In other words, the two parties disagree as to whether a requirement to arbitrate still exists.
    – S.O.S
    Nov 22, 2022 at 18:51
  • Since if there is to be an arbitration, that will prevent any trial from occurring at all, that question should normally be settled well before the trial opens. Indeed once the trial opens, a party has probably forfeited any right to arbitration. The exact procedure will depend on the details of the arbitration agreement.
    – David Siegel
    Nov 22, 2022 at 19:02
  • The arbitration agreement is moot as to the exact procedure. The party wishing to compel arbitration has already sent the opposing party an invitation to arbitrate which they have ignored. What else can the party seeking to compel arbitration do at this point? You cannot physically force someone to appear for arbitration. Only remaining option is to file a Motion or make the case for arbitration to the judge immediately at trial & have the judge force the parties to arbitrate. The question is which of the two is the right approach?
    – S.O.S
    Nov 22, 2022 at 19:19
  • @SOS I am reasonably sure that waiting until the trial is the wrong approach. Details on the correct approach may need to be learned. By the way, that isn't quite what "moot" means.
    – David Siegel
    Nov 22, 2022 at 19:23
  • @ _David Siegel I meant "silent" :)
    – S.O.S
    Nov 22, 2022 at 19:25

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