NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3560-16T4
JANG WON SO,
Submitted December 12, 2017 – Decided January 2, 2018
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
Cole Schotz, PC, attorneys for appellant
(Edward S. Kiel and Eric S. Latzer, of counsel
and on the briefs).
Najib, Kim, Feliz and Bullwinkel, LLC,
attorneys for respondent (Yoonki Kim, on the
Defendant EverBeauty, Inc. appeals from an order dated March
17, 2017, denying its motion to compel arbitration of a lawsuit
filed by plaintiff Jang Won So. For the reasons that follow, we
reverse the order on appeal and remand this matter to the trial
court with direction to enter an order submitting the matter to
The essential facts are undisputed. On October 19, 2016,
plaintiff filed a complaint alleging that defendant, his employer,
violated his rights under the New Jersey Law Against Discrimination
and the Workers' Compensation Law. In a December 16, 2016
conversation with plaintiff's counsel, defendant's attorney
asserted that the matter should be submitted to arbitration
pursuant to a clause in plaintiff's employment contract. On
December 20, 2016, plaintiff's counsel sent defense counsel an
email stating that his law firm was "leaning towards . . . going
to arb" but needed to speak with plaintiff, who was away on a
trip. Defendant's counsel followed up on December 29, 2016, with
an email asking plaintiff's counsel if his client would agree to
arbitration. On December 30, 2016, plaintiff's counsel sent a
responding email, stating: "I was able to speak to my client and
we will proceed to arbitration. I can draft a stip of dismissal."
More than two weeks later, on January 16, 2017, defendant's
counsel sent a follow-up email inquiring whether the stipulation
had been filed. Plaintiff's counsel sent a responding email on
January 25, 2017, stating that plaintiff "has had a change of
heart and has instructed me to make efforts to avoid arbitration."
Apparently anticipating a motion to enforce arbitration, the email
concluded, "we'll be awaiting your motion."
In its enforcement motion, defendant conceded that the
arbitration provision in the employment agreement was not
sufficiently specific and, therefore, was unenforceable. However,
defendant asserted that the phone call and subsequent exchange of
emails between the attorneys created a separate, binding agreement
The trial court denied the motion, reasoning that the
attorneys' communications did not "evidence a bargain[ed] for
exchange but only a statement by [p]laintiff's counsel as to what
his intentions were going forward in response to inquiries from
defense counsel." The court concluded that "any 'agreement' to
proceed to arbitration was not supported by consideration." The
court also reasoned, by analogy with Rule 4:35-1(d), which governs
bench trials, that giving up the right to a jury trial by agreeing
to arbitration required proof "that the promise was actually
Our review of an order denying a motion to compel arbitration
is de novo. See Hirsch v. Amper Fin. Servs., LLC,
215 N.J. 174,
186 (2013); Barr v. Bishop Rosen & Co., Inc.,
442 N.J. Super. 599,
605 (App. Div. 2015). Both federal and state law reflect a
preference for arbitration and a strong policy in favor of
enforcing arbitration agreements. Hirsch,
215 N.J. at 186;
Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc.,
445 N.J. Super. 173, 179 (App. Div. 2016). Nevertheless,
"[a]rbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit." Bernetich,
445 N.J. Super. at 179 (citation
Courts apply "ordinary state-law principles that govern the
formation of contracts" to decide whether the parties agreed to
arbitration. Id. at 179-80 (citation omitted). Courts should
not, however, "subject an arbitration agreement to more burdensome
requirements than those governing the formation of other
contracts." Id. at 180 (quoting Leodori v. CIGNA Corp.,
293, 302 (2003)).
"Basic contract principles render a promise enforceable
against the promisor if the promisee gave some consideration for
the promise." Martindale v. Sandvik, Inc.,
173 N.J. 76, 87 (2002).
"[A] very slight advantage to one party, or a trifling
inconvenience to the other, is a sufficient consideration to
support a contract . . . ." Id. at 87-88 (citation omitted).
Courts will not "inquire into the adequacy of consideration in
determining whether to enforce a contract." Seaview Orthopedics
ex rel. Fleming v. Nat'l Healthcare Res., Inc.,
366 N.J. Super.
501, 508-09 (App. Div. 2004).
In light of those principles, we cannot agree with the trial
court's reasoning in this case. An agreement to arbitrate is
analogous to the settlement of litigation. N.J. Mfrs. v.
300 N.J. Super. 1, 7 (App. Div. 1997). By analogy
here, if defendant's counsel had emailed plaintiff's counsel,
stating that "we will settle this case for $1000," and if
plaintiff's counsel had sent a responding email stating that "we
agree to settle the case for $1000," that exchange would have
created a binding settlement agreement. Plaintiff's later change
of heart could not vitiate the agreement.
This case is no different in substance. Defense counsel
communicated to plaintiff's counsel his client's willingness to
submit the matter to arbitration. After first stating that his
client needed time to consider the matter, plaintiff's counsel
later emailed defense counsel his client's unequivocal agreement
to arbitrate and offered to draft a stipulation of dismissal of
the lawsuit. At that point, the parties had agreed on the
essential terms and "manifested an intention to be bound by those
terms," thus creating a binding contract to resolve the case by
arbitration and file a stipulation of dismissal with the court.
See Weichert Co. Realtors v. Ryan,
128 N.J. 427, 435 (1992).
Plaintiff's change of heart a few weeks later could not undo the
contract. "A party is bound to the contract it made at the time,
even if it turns out to be a poor deal." Ibid.
In addition to finding that the promise to arbitrate was
bargained for, we cannot agree with the trial court's reasoning
that the agreement lacked consideration. Because arbitration is
faster and less expensive than a trial, the agreement provided
benefits to both parties. See Garfinkel v. Morristown Obstetrics
& Gynecology Assocs., P.A.,
168 N.J. 124, 131 (2001). Further,
by agreeing to arbitration, each side gave up its right to a jury
trial. That was sufficient consideration to support the formation
of a contract. See Martindale,
173 N.J. at 87. Accordingly, we
reverse the order on appeal and remand this matter to the trial
court for entry of an order submitting the matter to binding
Reversed and remanded. We do not retain jurisdiction.