Mediation
and Complementary Dispute Resolution
Compiled by Kenneth Vercammen, Esq.
To reduce court costs, many Civil cases
in New Jersey are being submitted to Mediation. According to the New Jersey
Administrative Office of the Courts, Mediation is a dispute resolution process
in which an impartial third party - the mediator - facilitates negotiations
among the parties to help them reach a mutually acceptable settlement. The
major distinction of mediation is that a mediator does not make a decision about
the outcome of the case. The parties, with the assistance of their attorneys,
work toward a solution with which they are comfortable.
What
is the Program?
The New Jersey Supreme Court Committee
on Complementary Dispute Resolution developed this mediation program, for use
in Civil, General Equity and Probate cases.
How
is a Mediator Selected a Case?
Mediators participating in the program
have been approved for inclusion on a roster by a subcommittee of the Committee
on Complementary Dispute Resolution. Mediators meet training requirements set
forth in Court Rule 1:40-10 and other criteria adopted by the subcommittee.
When a case is referred to mediation, the parties have the opportunity to agree
on a mediator from the roster, or they may select any other individual they
feel is suitable. If they cannot agree, the judge will assign a mediator to the
case.
How
Much does Mediation Cost?
Under Court Rule 1:40-4(a), the mediator
provides the first 2 hours on a case without charge, which would include a
first session. Thereafter, mediators will generally be paid their market rate
fee (to be shared by the parties). Fees will be waived in any case covered by
Rule 1:13-2(a).
What
Happens in Mediation?
There are certain ground rules the
mediator will ask participants to follow in mediation. The first, and most
important, is that with a few exceptions covered in Court Rule 1:40-4(b), what
goes on in mediation is confidential. That is, what is said in mediation cannot
be discussed outside of the mediation process unless the parties consent. Prior
to mediation, the mediator will usually ask the attorneys to prepare a brief
summary of the issues in dispute. Then, at the mediation session, the mediator
will ask attorneys and their clients to make brief presentations about the
issues from their own perspectives. After that, the mediator will help the
parties to explore areas of possible compromise and to develop a solution that
meets everybody's interests. Sometimes the mediator may meet with the parties
separately for a private discussion that might help move the parties toward a
resolution. If an agreement is reached, the mediator will notify the court and
a document will be drawn up specifying the agreement. When everybody signs the
agreement, the attorneys should request the court to dismiss the case.
What
Are the Roles of Counsel and Litigants in Mediation?
Attorneys and their parties are
required to make a good faith effort to cooperate with the mediator and engage
in constructive dialogue regarding ways to meet client interests in a mutually
acceptable settlement. Attorneys should prepare their clients prior to
mediation by explaining what will happen, and what the roles of attorneys and
clients are. They should also agree on who will be the principal spokesperson
in presenting the party's view early in the mediation session. For example,
attorneys may make brief opening summaries of the issues as they see them, but
clients should also be given an opportunity to speak. When it comes to
discussing terms of settlement, the litigants must play an active part, for it
is their case and their settlement. During this process, attorneys should
provide counsel on the advisability of settlement options, suggest options and
be available for any other consultation with their clients.
How
Does a Case Get Into Mediation?
Appropriate cases for referral can be
identified by judges, court staff, or the parties themselves, at any point in
the life of a case. A form of order for referral is prepared and signed by the
judge.
What Kinds of Cases Could Benefit from
Mediation?
Mediation has been used successfully
in a broad range of cases which exhibit characteristics such as: the parties
have an ongoing business or personal relationship or have had a significant
past relationship; communication problems exist between the parties; the
principal barriers to settlement are personal or emotional; parties want to
tailor a solution to meet specific needs or interests; cases involve complex
technical or scientific data requiring particular expertise; the parties have
an incentive to settle because of time, cost of ligation, or drain on
productivity; the parties wish to retain control over the outcome of the case;
or the parties seek a more private forum for the resolution of their dispute.
While there isn't any case type that couldn't potentially benefit, commercial,
construction, products liability, environmental and Law Against Discrimination
(LAD) cases, and certain General Equity and Probate cases are particularly
suited to mediation because they tend to exhibit some of the characteristics
described above.
At
What Time in the Process Should a Case be Referred to Mediation?
The earlier that a case can be referred
to mediation, the greater the likelihood that parties can resolve their dispute
at cost savings to themselves and the court. Parties should feel they have
enough information to discuss the dispute, which may mean that some discovery
should be completed. Mediators can also help the parties to determine just how
much discovery is needed. Even if discovery has been completed, settlement
negotiations have been unsuccessful, or the parties are close to a trial date,
the mediation process may still help the parties reach a mutually acceptable
agreement.
What
if the Case Isn't Resolved in Mediation?
Sometimes the parties are unable to reach
agreement, or only agree on certain aspects of the dispute. If certain aspects
are still unresolved, the parties may wish to submit that portion to an expert
for an opinion (binding or non-binding) or use some other creative means. The
case can also be returned to court, and continue on track towards trial. Even
in these cases, the mediation process may have helped the parties move toward
an ultimate settlement.
Complementary
Dispute Resolution Programs (CDR) provided for by these rules are available in
the Superior Court and Municipal Courts and constitute an integral part of the
judicial process, intended to enhance its quality and efficacy.
The
following are some of the Court Rules in Mediation:
1:40-2.
Modes and Definitions of Complementary Dispute Resolution
Complementary
Dispute Resolution Programs (CDR) conducted under judicial supervision in
accordance with these rules, as well as guidelines and directives of the
Supreme Court, and the persons who provide the services to these programs are
as follows:
(a)
"Adjudicative Processes" means and includes the following:
(1)
Arbitration: A process by which each party and/or its counsel presents its case
to a neutral third party, who then renders a specific award.. The parties may
stipulate in advance of the arbitration that the award shall be binding. If not
so stipulated, the provisions of Rule 4:21A-6 (Entry of Judgment; Trial De
Novo) shall be applicable.
(2)
Settlement Proceedings: A process by which the parties appear before a neutral
third party or panel of such neutrals, who assists them in attempting to
resolve their dispute by voluntary agreement.
(3)
Summary Jury Trial: A process by which the parties present summaries of their
respective positions to a panel of jurors, which may then issue a non-binding
advisory opinion as to liability, damages, or both.
(b)
"Evaluative Processes" means and includes the following:
(1)
Early Neutral Evaluation (ENE): A pre-discovery process by which the attorneys,
in the presence of their respective clients, present their factual and legal
contentions to a neutral evaluator, who then provides an assessment of the
strengths and weaknesses of each position and, if settlement does not ensue,
assists in narrowing the dispute and proposing discovery guidelines.
(2)
Neutral Fact Finding: A process by which a neutral, agreed upon by the parties,
investigates and analyzes a dispute involving complex or technical issues, and
who then makes non-binding findings and recommendations.
(c)
"Facilitative Process" means and includes mediation, which is a
process by which a mediator facilitates communication between parties in an
effort to promote settlement without imposition of the mediator's own judgment
regarding the issues in dispute.
(d)
"Hybrid Process" means and includes:
(1)
Mediation-arbitration: A process by which, after an initial mediation,
unresolved issues are then arbitrated.
(2)
Mini-trial: A process by which the parties present their legal and factual
conditions to either a panel of representatives selected by each party, or a
neutral third party, or both, in an effort to define the issues in dispute and
to assist settlement negotiations. A neutral third party may issue an advisory
opinion, which shall not, however, be binding, unless the parties have so
stipulated in writing in advance.
(e)
"Other CDR Programs" means and includes any other method or technique
of complementary dispute resolution permitted by guideline or directive of the
Supreme Court.
(f)
"Neutral": A "neutral" is an individual who provides a CDR
process. A "qualified neutral" is an individual included on any
roster of neutrals maintained by the Administrative Office of the Courts or an
Assignment Judge. Neutral evaluators, neutral fact finders, and settlement
program panelists are not required to comply with the training requirements of
Rule 1:40-12 or to be on any roster of neutrals maintained by the Administrative
Office of the Courts or an Assignment Judge.
1:40-3.
Organization and Management
(a)
Vicinage Organization and Management. Pursuant to these rules and Supreme Court
guidelines, the Assignment Judge of each vicinage shall have overall
responsibility for CDR programs, including their development and oversight,
continuing relations with the Bar to secure the effectiveness of these
programs, and mechanisms to educate judges, attorneys, staff, and the public on
the benefits of CDR. The Assignment Judge shall appoint a CDR coordinator to
assist in the oversight, coordination and management of the vicinage CDR
programs. The Assignment Judge shall maintain, pursuant to these rules, all
required rosters of neutrals except the roster of statewide civil, general equity,
and probate action mediators.
(b)
Statewide Organization and Management. The Administrative Office of the Courts
shall have the responsibility (1) to promote uniformity and quality of CDR
programs in all vicinages, (2) to monitor and evaluate vicinage CDR programs
and assist CDR Coordinators in implementing them; (3) to serve as a
clearinghouse for ideas, issues, and new trends relating to CDR, both in New
Jersey and in other jurisdictions; (4) to develop CDR pilot projects to meet
new needs; (5) to monitor training and continuing education programs for
neutrals; and (6) to institutionalize relationships relating to CDR with the
bar, universities, the Marie L. Garibaldi ADR Inn of Court, and private
providers of CDR services. The Administrative Office of the Courts shall
maintain the statewide roster of civil, general equity, and probate action
mediators.
1:40-4.
Mediation-General Rules
(a)
Referral to Mediation. Except as otherwise provided by these rules, a Superior
Court or Municipal Court judge may require the parties to attend a mediation
session at any time following the filing of a complaint.
(b)
Compensation and Payment of Mediators. Parties in Superior Court, except in the
Special Civil Part, assigned to mediation pursuant to this rule shall equally
share the fees and expenses of the mediator on an ongoing basis, subject to
court review and allocation to create equity. Any fee or expense of the
mediator shall be waived in cases, as to those parties exempt, pursuant to Rule
1:13-2(a). A party may opt out of the mediation process after the mediator has
expended three hours of service, which shall include preparation and the first
mediation session, and which shall be at no cost to the parties. Fees shall be
as determined by the mediator and the parties. Failure to pay the mediator may
result in an order by the court to pay and imposing appropriate sanctions.
(c)
Confidentiality. Except as otherwise provided by this rule and unless the
parties otherwise consent, no disclosure made by a party during mediation shall
be admitted as evidence against that party in any civil, criminal, or
quasi-criminal proceeding. A party may, however, establish the substance of the
disclosure in any such proceeding by independent evidence. A mediator has the
duty to disclose to a proper authority 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. No mediator may participate in any subsequent hearing
or trial of the mediated matter or appear as witness or counsel for any person
in the same or any related matter. A lawyer representing a client at a
mediation session shall be governed by the provisions of RPC 1.6.
(d)
Limitations on Service as a Mediator.
(1)
Mediators shall be qualified and trained in accordance with the provisions of
Rule 1:40-12.
(2)
No elected official, or candidate for elected office, shall serve as a CDR
mediator within the geographic boundary of the elected office.
(3)
The approval of the Assignment Judge is required for service as a mediator by
any of the following: (A) appointed public officials; (B) police or other law
enforcement officers employed by the State or any local unit of government; (C)
employees of any court; (D) government officials or employees whose duties
involve regular contact with the court in which they serve; or (E) elected
officials, or candidates for elected office, who wish to serve outside the
geographic boundaries of the elected office.
(4)
The Assignment Judge shall also have the discretion to require prior review and
approval of the Supreme Court of prospective mediators whose employment or
position appears to the Assignment Judge to require such review and approval.
(e)
Conduct of Mediation Proceedings. Mediation proceedings shall commence with an
opening statement by the mediator describing the purpose and procedures of the
process. Non-party witnesses may be heard in the discretion of the mediator,
and other non-parties shall be permitted to attend only with the consent of the
parties and the mediator. Multiple sessions may be scheduled. Attorneys and
parties have an obligation to participate in the mediation process in good
faith in accordance with program guidelines.
(f)
Termination of Mediation.
(1)
The mediator or a participant may terminate the session if (A) there is an
imbalance of power between the parties that the mediator cannot overcome, (B) a
party challenges the impartiality of the mediator, (C) there is abusive
behavior that the mediator cannot control, or (D) a party continuously resists
the mediation process or the mediator.
(2)
The mediator shall terminate the session if (A) there is a failure of
communication that seriously impedes effective discussion, (B) the mediator
believes a party is under the influence of drugs or alcohol, or (C) the
mediator believes continued mediation is inappropriate or inadvisable for any
reason.
(g)
Final Disposition. If the mediation results in the parties' total or partial
agreement, it shall be reduced to writing and a copy thereof furnished to each
party. The agreement need not be filed with the court, but if formal
proceedings have been stayed pending mediation, the mediator shall report to
the court whether agreement has been reached. If an agreement is not reached,
the matter shall be referred back to court for formal disposition.
