NJ Mediation
HISTORICAL BACKGROUND OF MEDIATION
Mediation has its origins in ancient times. Mediation was utilized in Phoenicia and Babylon to resolve commerce issues. The ancient Greeks called mediators proxenetas. The origins of mediation can be traced to Roman Law as early as 530 A.D. Romans had other names for mediators, including intemuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and eventually mediator. Mediation is a form of Alternative Dispute Resolution (ADR). See Wikipedia, the Free Encyclopedia, History of Dispute Mediation, http://en.wikipedia.org. The general definition of mediation is the process whereby a neutral person facilitates the resolution of a dispute between two parties. When the mediator has a specialized knowledge such as in the area of divorce, the process historically has been referred to as conciliation. Conciliators, utilizing their expertise of the matter in dispute, can make suggestions for settlement terms and give advice on the subject matter. In that sense, the conciliator acts as an advisor and mediator. For purposes of this chapter, the term mediator will apply to the neutral third person who acts in the mediation or conciliation process.
The mediation process was first recognized in the United States in 1947, when the Taft-Hartley Act created The Federal Mediation and Conciliation Service, which was an independent agency of The United States Government, to promote sound and stable labor management relations and to minimize the effect of lockouts and strikes on the free flow of commence. Federal mediators assisted labor unions and companies to help reach agreements on Collective Bargaining Contracts. See 4B N.J. PRAC § 100.34; See also 29 U.S.C.A. § 141 et seq.
OBLIGATION TO ADVISE CLIENTS OF MEDIATION AND OTHER COMPLEMENTARY DISPUTE RESOLUTION PROCESSES
Attorneys have an obligation to familiarize themselves with available Complementary Dispute Resolution Processes (CDR). R. 1:40-1 obligates attorneys to become familiar with available programs and to inform their clients of them. Our courts have recognized that CDR constitutes an integral part of the judicial process, and its use enhances the quality and efficiency of our courts.
Further, R. 5:4-2(h) requires attorneys in family court matters to disseminate descriptive literature regarding CDR Alternatives. The descriptive materials, approved by The Supreme Court, are set forth below.
- 5:4-2(h) requires an Affidavit or Certification annexed to the first pleading attesting to the dissemination of the descriptive material on CDR.
STATUTORY AUTHORITY: MEDIATION UNDER
THE UNIFORM MEDIATION ACT
The Uniform Mediation Act was enacted and effective in New Jersey on November 22, 2004. The Uniform Mediation Act (UMA) established uniform standards and procedures for mediation and mediators. The New Jersey Act was approved by the New Jersey Law Revision Committee, The New Jersey Association of Professional Mediators, and The New Jersey State Bar Association.
UMA defines mediation as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. UMA applies when parties are required to mediate by statute, court rule or administrative agency rule, or are referred to mediation by a court, administrative agency or arbitrator. One of the most salient provisions regards the privilege against disclosure of all communications during the mediation process, unless waived by all parties through the mediation. There are exceptions, which will be discussed later in this chapter.
The UMA requires an individual requested to serve as a mediator to make a reasonable inquiry to determine whether there are any known facts likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation, and an existing or past relationship with a mediation party, or foreseeable participation in the mediation. See N.J.S.A. 2A: 23C-1 through N.J.S.A. 2A:23C-13.
COURT-ORDERED ECONOMIC MEDIATION
Mediation is mandated by court rule on all economic aspects of divorce. R. 5:5-6 requires all matters in which a settlement has not been achieved at the time of the MESP (Matrimonial Early Settlement Panel) to be referred to economic mediation. After the MESP, the litigants may select a mediator from the statewide-approved list of mediators, or select an individual, to conduct economic mediation. The litigants are required to participate in the program for no more than two hours consisting of one-hour preparation time by the mediator, and one hour of the mediator’s time in actual mediation. Participation, after the first two hours, shall be voluntary and the mediator may charge their customary rate.
Appendix XIX provides the guidelines for the economic mediation program. It is important to note that no matter may be referred to mediation if a Temporary or Final Restraining Order has been entered pursuant to the Prevention of Domestic Violence Act (See N.J.S.A. 2C:45-17).
Upon conclusion of an unsuccessful MESP, the attorneys are required to select a mediator and schedule the first mediation. The court will enter an Order accordingly. The attorneys are encouraged to attend the mediation, but are not required. The attorneys and/or parties are required to submit to the mediator, in advance of the mediation, accurate and complete information, including, but not limited to, tax returns, Case Information Statements, and appraisal reports. The practice has developed whereby the attorneys submit their Matrimonial Early Settlement Panel proposals to the mediator. The court may stay the discovery and set times for completion of mediation.
COURT-ORDERED CUSTODY MEDIATION
When the court finds that a custody dispute is genuine and substantiated, the custody issue shall be referred to court sponsored mediation. During mediation, R. 5:8-1 suspends any obligation of the parties to participate in custody evaluations with any expert, unless the parties agree. The custody mediation process is no longer than two months, unless extended on good cause shown, pursuant to R. 5:8-6.
QUALIFICATION OF COURT-ORDERED MEDIATORS
Qualification for mediators in the family part is governed by R. 1:40-12(a)(1). There is no specific occupational status, or educational degree, required for a mediator of economic issues in family law matters. An applicant for listing on the roster of mediators maintained by the administrative office of the courts, or the assignment judge, shall certify to “Good Professional Standing.” An applicant, whose professional license has been revoked shall not be placed on the roster, or, if already on the roster, shall be removed therefrom.
Qualifications for custody and parenting time mediators requires a presiding judge of the family part to recommend to the assignment judge, persons or agencies who meet the following minimum qualifications: (a) a graduate degree or a certification of advanced training in a behavioral or social science; (b) training in mediation techniques and practice, as prescribed by the Rules of Court; and (c) supervised clinical experience in mediation, preferably with families. In the discretion of the assignment judge, relevant experience may be substituted for either a graduate degree or certification, or clinical experience, or both.
All mediators must meet certain training requirements. Family part mediators must complete a 40-hour training program consisting of basic mediation skills and 22 hours of specialized family mediation training, which must include issues of child development, family law, divorce procedures, family finances, and community resources. Under special circumstances and upon the request of the assignment judge, the administrative office of the courts can temporarily approve, for a one year period, an applicant who has not yet completed the specialized family mediation training, providing the applicant must have at least three years of experience as a mediator or combination of mediation experience and service in the family part, has co-mediated in a CDR Program with an experienced family mediator, and certifies to the intention to complete the specialized training within one year following the temporary approval.
The above requirements for mediation training may be waived by the administrative office of the courts, or the assignment judge, for mediators already serving prior to September 1, 1992 (the effective date of the requirement), so long as the mediator is qualified to continue to serve by reason of background, training, relevant educational and professional experience, and any other relevant factor. See R. 1:40-12. The American Academy of Matrimonial Lawyers has a certification program for family mediators, which consists of a forty-hour course.
IMPARTIALITY OF MEDIATOR
N.J.S.A. 2A:23C-a requires a mediator to divulge any circumstance that would render the mediator not to be impartial, including a financial or personal interest in the outcome of the mediation, and an existing or past relationship with a mediation party, or foreseeable participant in the mediation.
Rule 1:40-5(a)(3) states that the court-appointed mediator in Family Part matters “may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the Court respecting custody and parenting time.” The Appellate Division addressed this issue in Isaacson v. Isaacson, 348 N.J. Super. 560 (App. Div. 2002), wherein it was held that the same individual could not serve both as a guardian ad litem and a mediator. The Court reasoned that,
“The mediation process includes the ability of the mediator to be privy to confidential matters that cannot be then presented to the Court….The inherent conflict between mediator’s obligation to respect the confidences of the parties and her calm commitment responsibility as guardian ad litem to serve as an officer of the court in the interest of the children precludes the same individual from serving in both roles.” Id. at 577.
PRACTICE AND PROCEDURES
AGREEMENTS TO MEDIATE.
Parties to private family mediation are well advised to enter into an agreement or Consent Order for the mediation process. The agreement to mediate can be as simple and direct as agreeing to mediate certain issues, designating a mediator, and defining or allocating the cost of mediation. Additional provisions in an agreement to mediate may include issues of confidentiality, discovery, and employments of experts for appraisal purposes. More often, the agreement to mediate is simply a Consent Order, or simple agreement to mediate, and the balance of the related issues to mediation are contained in the retainer agreement with the mediator.
MEDIATION RETAINER AGREEMENTS
The agreement with the mediator is an important document for both the mediator and the parties to mediation. It should include what issues are to be mediated, the method by which the mediator’s fees will be computed and paid, including costs and disbursements on the initial retainer, confidentiality and the withdrawal of the mediator.
The goal of the mediator is to facilitate an understanding between the parties to the mediation. There is a divergence of practice among mediators. One school of mediators will simply prepare a Memorandum of Understanding, which is non-binding. That school of mediators believes that it would create a conflict of interest and potential ethical or malpractice issues if the mediator were to prepare a final settlement agreement between the parties. Those mediators include provisions in their mediation, retainers, or agreements, that limit their role to prepare a Memorandum of Understanding and that the parties to mediation should take the Memorandum of Understanding to their own separate counsel for advice and preparation of a final agreement. A second school of mediators prepare a written agreement for the parties to sign.
LEGAL ISSUES
CONFIDENTIALITY.
- 1:40-4(c) shields all disclosures made by a party during mediation from being admitted against that party in any civil, criminal or quasi-criminal proceeding. However, the parties may consent to waive the confidentiality requirement. Even though a party may discover information that would be barred in a subsequent proceeding, that party is free to establish the substance of mediation communication by independent evidence. Further, a mediator has the duty to disclose to the proper authorities information obtained at a mediation session, on the reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act, likely to result in death or serious bodily harm. A mediator may not participate in any subsequent hearing or trial of the mediated matter, or appear as a witness, or counsel for any person in the same or related matter. See R. 1:40-4(c) and (d).
N.J.S.A. 2A: 23C-8 mandates that unless the mediation is open to the public all communications are confidential to the extent agreed by the parties, or provided by other law or court rule.
DISCLOSURE AND PRIVILEGE
The Uniform Mediation Act provides in specific detail the privilege against disclosure, admissibility of mediation evidence and discovery. N.J.S.A. 2A:23C-4 protects any mediation communication from discovery or admissibility in evidence in a proceeding, unless waived or precluded, as provided in the Mediation Act. The statute specifically defines the following privileges:
- A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication;
- A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator; and
- A non-party participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of non-party participants.
However, information that would otherwise be admissible, or subject to discovery, may not be inadmissible, or protected solely by reason of its disclosure or use in a mediation session.
The privilege, as set forth above, may be waived or precluded under the following circumstances, as defined by the Uniform Mediation Act. The privileges may be waived during a proceeding, if all parties to the mediation waive the privilege and:
- If it is the mediator’s privilege, it must be waived by the mediator, or;
- If it is the non-party participant’s privilege, it is expressly waived by the non-party participant.
If a person discloses or makes a representation about a mediation communication that prejudices another person in a proceeding, the person disclosing the communication is precluded from asserting a privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
A person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an on-going crime, or on-going criminal activities, is precluded from asserting a privilege. See N.J.S.A. 2A:23C-5.
In State v. Williams, 184 N.J. 432, 437 (2005), the Supreme Court of New Jersey applied the provisions of the Uniform Mediation Act and held that a court-appointed mediator who attempted to mediate a harassment dispute between a victim and defendant, could not testify at a criminal trial related to the initial harassment charges. In Williams, defendant filed a municipal court complaint against plaintiff alleging that phone messages left on his voicemail constituted harassment. Id. at 436. Subsequent to the phone messages, the defendant and his brother-in-law were involved in a physical altercation, during which the defendant claims that his brother-in-law hit him in the shoulder with a large shovel and the brother-in-law alleges that the defendant cut him with a machete. Id. As a result of this fight, the defendant faced criminal charges. Id. A criminal trial was held, during which the defendant’s counsel questioned the mediator and requested that the court allow the mediator to testify as to alleged admissions by the brother-in-law regarding the use of the shovel. Id. The trial court excluded the mediator’s testimony, and convicted the defendant of assault and weapons charges. Id. at 437. The Appellate Division upheld the trial court’s exclusion of the mediator’s testimony and affirmed the defendant’s conviction, which was again affirmed by the Supreme Court of New Jersey.
The Williams Court relied upon N.J.S.A. 2A:23C-4(b), which specifically provides that the Uniform Mediation Act protects mediation confidentiality by empowering parties, mediators, and nonparty participants to “refuse to disclose, and to prevent any other person from disclosing a mediation communication.” State v. Williams, supra 184 N.J. at 445. This privilege yields, however, if a court determines: (1) that the mediation communication is sought or offered in a criminal proceeding; (2) that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality; and (3) that the proponent of the evidence has shown that the evidence is not otherwise available. Id. (referencing N.J.S.A. 2A:23C-6(b)). The burden is on the defendant to satisfy these requirements, and can only prevail if all of these conditions are met. Id.
The Williams Court held that the first requirement was established because the defendant was on trial for assault and weapons charges, and sought to introduce evidence of mediation statements into a criminal trial. Id. at 447. The Court further held that the need for the evidence did not outweigh the interest in protecting confidentiality. Thus, the second requirement was not satisfied. Id. at 452. The Court reasoned as follows:
“An integral part of the increasing prevalent practice of alternative dispute resolution (ADR), mediation is designed to encourage parties to reach compromise and settlement. See R. 1:40-3(c) (describing mediation as a ‘process by which a mediator facilitates communication between parties in an effort to promote settlement’); Michael L. Prigoff, Toward Candor or Chaos: The Case of Confidentiality in Mediation, 12 Seton Hall Legis. J. 1, 12 (1988) (stating that ‘[t]he trend towards compromise and settlement of disputes, which mediation advances, is clear’). Courts have long-recognized that public policy favors settlement of legal disputes, see, e.g., Nolan ex rel. Nolan v. Lee Ho, 120 N.J. 465, 472, 577 A.2d 143 (1990), and that confidentiality is a ‘fundamental ingredient of the settlement process’, Brown v. Pica, 360 N.J. Super. 565, 568, 823 A.2d 899 (Law Div. 2001). The rationale is simple: ‘If settlement offers were to be treated as admissions of liability, many of them might never be made’. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 408 (2004) (citing 2 McCormick on Evidence §266 (4th ed. 1992)); accord Brown, supra 360 N.J. Super. at 569, 823 A.2d 899 (observing that confidentiality ‘aids in the free and frank discussion’ during settlement negotiations).
Successful mediation, with its emphasis on conciliation, depends on confidentiality perhaps more than any other form of ADR. See Foxgate Homeowners’ Ass’n, Inc. v. Bramalea Cal., Inc., 26 Cal. 4th 1, 108, Cal. Rptr. 2d 642, 25 P.3d 1117, 1126 (2001) (‘[C]onfidentiality is essential to effective mediation….’). Confidentiality allows ‘the parties participating [to] feel that they may be open and honest among themselves….Without such assurances, disputants may be unwilling to reveal relevant information and may be hesitant to disclose potential accommodations that might appear to compromise the positions they have taken’. Final Report of the Supreme Court Task Force on Dispute Resolution 23 (1990); See also Prigoff, supra 12 Seton Hall Leg. J. at 2 (‘Compromise negotiations often require the admission of facts which disputants would never otherwise concede.’) Indeed, mediation stands in stark contrast to formal adjudication, and even arbitration, in which the avowed goal is to uncover and present evidence of claims and defenses in an adversarial setting. Mediation sessions, on the other hand, ‘are not conducted under oath, do not follow traditional rules of evidence, and are not limited to developing the facts.’ Rinaker v. Superior Court, 62 Cal.App. 4th 155, 74 Cal.Rptr. 2d 464, 467 (1998). Mediation communications, which “would not [even] exist but for the settlement attempt”, are made by parties ‘without the expectation that they will later be bound by them’. Prigoff, supra 12 Seton Hall Legis. J. at 2, 13. Ultimately, allowing participants to treat mediation as a fact-finding expedition would sabotage its effectiveness. See Id. at 2 (warning that routine breaches of confidentiality would reduce mediation to ‘discovery device’).
If mediation confidentiality is important, the appearance of impartiality is imperative. A mediator, although neutral, often takes an active role in promoting candid dialogue ‘by identifying issues [and] encouraging parties to accommodate each others’ interests’. Id. at 2. To perform that function, a mediator must be able ‘to instill the trust and confidence of the participants in the mediation process. That confidence is insured if the participants trust that information conveyed to the mediator will remain in confidence. Neutrality is the essence of the mediation process’. Isaacson v. Isaacson, 348 N.J. Super., 560, 575, 792 A.2d (App. Div. 2002) (interpreting Rule 1:40). Thus, courts should be especially wary of mediator testimony because ‘no matter how carefully presented, [it] will inevitably be characterized so as to favor one side or the other’. Prigoff, supra 12 Seton Hall Leg. J. at 2 (emphasis added); see also In re Anonymous, 283 F.3d 627, 640 (4th Cir. 2002). (‘If [mediators] were permitted or required to testify about their activities,…not even the strictest adherence to purely factual matters would prevent the evidence from favoring or seeming to favor one side or the other.’ (alteration in original) (quoting NLRB v. Joseph Macaluso, Inc., 618 F.2d 51 (9th Cir. 1980)); Ellen Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marq. L. Rev. 79, 82 (2001) (‘If a mediator can be converted into the opposing party’s weapon in court, then her neutrality is only temporary and illusory.’).
There is a growing body of evidence that mediation is particularly successful at facilitating settlement. See UMA Drafter’s Statement, supra prefatory n. 2 (‘[D]isputing parties often reach settlement earlier through mediation, because of the expression of emotions and exchanges of information that occur as part of the mediation process.’). A recent study of a court-mandated mediation program in New Jersey found that nearly 40% of matters diverted to mediation were resolved at the mediation or within three months afterward, most ‘with little or no discovery’ and the concomitant expense to disputants. Report of the Committee on Complementary Dispute Resolution on the Evaluation of the Presumptive Mediation Pilot Program 2000-2004, at 1 (2005) [hereinafter Pilot Program Report]. Further, although some litigants who settle an acrimonious lawsuit may feel as though they have achieved nothing more than an ‘equitable distribution of dissatisfaction’, Rabb Emison, A Meditation and Mediation-Revisited, 44 Res Gestae, 46, 46 (2001), mediation’s great strength is that disputants who settle in that forum are generally satisfied with the process and the result, see Pilot Program Report, supra at 1 (‘Both mediators performance and the process itself were rated exceedingly high by both litigants and attorneys responding to post-mediation exit questionnaires.’).” State v. Williams, supra 184 N.J. at 446, 448.
The Williams Court also recognized that the New Jersey Rules of Evidence, specifically Rule 408, precludes the admission of settlement negotiations in subsequent proceedings. Id. at 450. Also, the New Jersey Alternative Procedure for Dispute Resolution Act limits the ability of ADR participants to introduce statements at subsequent proceedings or to call an arbitrator as a witness. Id. (See N.J.S.A. 2A:23A-9(c) and N.J.S.A. 2A:23A-20).
Further, the Williams Court recognized that the mediator’s testimony did not exhibit the indicia of real liability and trustworthiness necessary for competent evidence, as actions of the mediator implied that the mediator was not neutral, and the mediator’s testimony did not corroborate defendant’s version of the events. State v. Williams, supra 184 N.J. at 452.
The third criteria to establish the exception for the confidentiality privilege was also not satisfied because the defendant did not show that the evidence was not otherwise available. Ibid. The Court recognized that both parties had access to and presented at trial substantial evidence from other sources bearing on the issue of self-defense. Id. As a result, the Court affirmed the lower court’s decision to exclude the mediator’s testimony. Therefore, in order for a mediator to testify in a subsequent criminal proceeding stemming from a family matter or otherwise, the defendant must show that the mediation confidentiality privilege has been overcome.
More recently, the Appellate Division held that, absent an effective waiver of the confidentiality provision of the Rule 1:40-4(c) or N.J.S.A. 2A:23C-6 of the Uniform Mediation Act, a mediator shall not testify at a Harrington hearing. Lehr v. Afflitto, 382 N.J. Super. 376 (App. Div. 2006). In Lehr, the husband appealed from the trial court’s entry of a judgment of divorce based on an alleged agreement reached after court-ordered mediation. Id. at 378. The Appellate Division remanded for a Harrington hearing to be conducted in accordance with Harrington v. Harrington, 281 N.J. Super. 39 (App. Div. 1995). Id.
At the Harrington hearing, the court-appointed mediator testified. Lehr v. Afflitto, supra 382 N.J. Super. at 385-388. The trial court held that there was a meeting of the minds between the parties that specific terms outlined in the mediator’s letter should be reduced to writing that reflects the agreement. Id. at 390. Husband appealed and argued that the mediator should not have testified at the Harrington hearing. Ibid.
The Appellate Division held that the trial court erred in permitting the parties’ mediator to testify at the Harrington hearing because none of the exceptions to the confidentiality provisions of the Rules of Court and Uniform Mediation Act were expressly waived, or otherwise established. Id. at 391. The Court further held that the test for piercing the mediation privilege as articulated in Williams was not established. Id. The court reasoned that “underpinning the success of mediation in our court system is the assurance that what is said and done during the mediation process will remain confidential, unless there is an express waiver by all parties or unless the mood for disclosure is so great that it substantially outweighs the need for confidentiality. A mediation process was not designed to create another layer of litigation in an already overburdened system”. Id.
However, see the case of Willingboro Mall, Ltd. v. Franklin Avenue, LLC., 421 N. J. Super 445 (App. Div. 2011) There, the parties attended mediation with a retired Superior Court judge as the mediator. After several hours, the parties agreed on a settlement and, three days later, counsel for the defendant wrote a letter to the mediator informing him of the terms of a settlement that they had reached. Shortly thereafter, the plaintiff refused to consummate the settlement and asserted that a final binding settlement had not been reached. The trial court found that the parties had reached a settlement after a hearing. The trial judge’s decision was affirmed with the court holding that, “if the parties waive the confidentially of the mediation session, an agreement reached at mediation, although not reduced to writing at the time of the mediation, can be held enforceable.” R.1:40-4(i) does not prohibit the mediator or one of the parties reducing the terms of the agreement to writing shortly after the conclusion of the mediation session. Thus, there is no rule that a settlement be contemporaneously reduced to writing at the time of the mediation session.
For additional information on the subject of mediation, See § 1.8L(2).
About the Author
Mark Gruber Esq. is a Certified Matrimonial Law Attorney, Fellow of the American Academy of Matrimonial Attorneys, Mediator, Arbitrator, and Collaborative Law Attorney. He can be reached at [email protected]. Website gruberlaw-nj.com