Last week, Larry Cutler posted a piece on this blog entitled "Are Mediation Proceedings Really Sacred and Secret?"  The inspiration for this post was a recent published Appellate Division case Willingboro Mall, Ltd. V. 240/242 Franklin Avenue, L.L.C.., a case in which a mediator actually filed a certification and testified.  That, however, is the exception but not the rule. 

Often enough, parties go through mediation and believe that they have reached agreement.  It happens in divorce cases, and as evidenced in Willingboro Mall, it happens in other litigations.  Can the mediator testify that (1) there was a settlement and (2) what the terms are?  R. 1:40-4(c) includes a  restriction that "[no] mediator may participate in any subsequent hearing of the mediated matter or appear as a witness . . . for any person in the same or related matter.." The reported case of Lehr v. Afflito reiterates that the involvement of the mediator is improper absent a valid waiver by both parties.

Should this be the case, however?  If the ultimate issue as to whether or not a matter was settled is in dispute, who better than the mediator to answer that limited question?  If the parties agree ta ht the matter was settled but disagree on what the terms were, who better to answer that question too?  Parenthetically, if you go on the New Jersey Judiciary Web Site, there is a form for use by a mediator which is to be submitted to the Court after mediation called the Mediation Case Information Form.  The form requires the mediator to advise the matter is fully settled, partially settled or not settled.  Seemingly, this form would not be evidential under Lehr.

Since the Court places such high importance on the settlement of a matter on a public policy basis, would requiring mediators to report these things, if there was a dispute, really up end the confidentiality of the process.  Doesn’t settlement signal the end of the process? Interestingly, in Willingboro Mall, Judge Fall (a former Family Part Judge), noted the following in response to the plaintiff’s position that for a matter to be settled during mediation, there must be a contemporaneous writing on the spot:

Plaintiff’s position also ignores the reason for referring a matter to mediation. The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. See State v. Williams, 184 N.J. 432, 441 (2005). In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party. Indeed, such a result is the antithesis of the mediation process. Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment. The very purpose of the process is to resolve the dispute. (Emphasis added).

People can always make one of the ground rules of mediation or a settlement conference that there is no settlement until it is reduced to a writing signed by all parties.  That said, if they don’t do that and then settle at mediation, should a party be allowed to renege, or even claim that there was no deal without the one person, without a vested interest in the litigation, telling the Court about the settlement?  As ADR is becoming more prevalent, my guess is that we have not seen the last of this issue.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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