New Jersey has an important new case that mediators and advocates in mediation should be aware of: Willingboro Mall Ltd. v. 240\/242 Franklin Avenue Associates LLC , A-4589-09. The headlines in the news focus on the fact that it held an oral settlement reached in mediation may be enforceable if subsequently memorialized by a writing :\u201dWe hesitate to interpret the writing requirement of Rule 1:40-4(i) so rigidly that it becomes an impediment to resolution of a matter through mediation.\u201d<\/p>\n
I would like to focus on a different point in the case \u2014 the mediator\u2019s privilege not to testify.<\/p>\n
New Jersey has adopted a mediation privilege in its rules of evidence:
\nNew Jersey Rule of Evidence 519 entitled \u201cMediation Privilege\u201d provides that a mediation communication is privileged and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded under limited circumstances. However, the parties to a mediation may expressly waive the privilege, and in the case of the privilege of a mediator, it may be expressly waived by the mediator.<\/p>\n
The evidence rule expands New Jersey Court Rule 1:40-4 \u201cMediation \u2013 General Rules\u201d which include a \u201cconfidentiality\u201d provision. It mirrors several provisions within the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 to 13.<\/p>\n
In Willingboro the defendant\u2019s counsel sent an email with a draft memorandum of understanding subsequent to the mediation and also undertook to put moneys in escrow \u2014 There was no signed writing. But there was a 4-day hearing on a 1-day mediation that resulted in the enforcement of the oral agreement commemorated by an unsigned writing. The court held that all parties and the mediator waived the privilege:<\/p>\n
\u201cHere, defendants first breached the confidentiality of the<\/p>\n
proceeding by supporting their motion to enforce the settlement<\/p>\n
with a certification from the mediator. Thereafter, the<\/p>\n
mediator was deposed and testified at trial. The extent of the<\/p>\n
waiver was the subject of rulings by Judge Bookbinder during the<\/p>\n
deposition of the mediator and at trial by Judge Hogan. We do<\/p>\n
not understand any argument advanced by plaintiff to contest<\/p>\n
those rulings.\u201d<\/p>\n
This is not a good outcome for a mediation or for confidentiality. The clear lesson for mediators is make sure there is a signed writing at the close of the successful mediation, consider asking the parties to draft an agreement or key terms in advance (without monetary terms), and enter into a confidentiality agreement with the parties before the mediation providing that they will not call the mediator as a witness.<\/p>\n","protected":false},"excerpt":{"rendered":"