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Sunday, April 19, 2015

I/M/O TOWN OF HARRISON AND FRATERNAL ORDER OF POLICE,LODGE NO. 116

I/M/O TOWN OF HARRISON AND FRATERNAL ORDER OF POLICE,LODGE NO. 116;I/M/O VERNON TOWNSHIP PBA LOCAL 285 CONTRACT;I/M/O BOROUGH OF RAMSEY AND PBA LOCAL NO. 155;I/M/O TOWNSHIP OF WOODBRIDGE AND PBA LOCAL 38;I/M/O CITY OF LINDEN AND FMBA LOCAL NO. 234;I/M/O TOWN OF HARRISON AND FMBA LOCAL NO. 22;I/M/O TOWN OF
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HARRISON AND PBA LOCAL NO. 22;I/M/O TOWN OF HARRISON AND FMBA LOCAL NO. 22;I/M/O CITY OF LINDEN AND FMBA LOCAL 234 A-0083-11T2/A-0099-11T2/A-0123-11T2/A-0124-11T2/A- 0157-11T2/A-0158-11T2/A-0159-11T2/A-0195-11T2/A-0208- 11T2(CONSOLIDATED)
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Five
officers and firefighters employed by them have mounted a collective legal challenge to the Acting Director of the Division of Pensions and Benefits' decision to refuse to implement the final determination of the Board of Trustees of the Police and Firemen's Retirement System, which found certain senior officer and longevity pay provisions in the collective bargaining agreements entered into by appellants were creditable compensation for pension purposes under N.J.S.A. 43:16A- 1(26)(a).

The singular legal question before us is whether the Acting Director of the Division of Pensions and Benefits has the legal authority to refuse to implement a final decision of the PFRS Board of Trustees because the Acting Director has independently concluded that the decision of the PFRS Board of Trustees is legally incorrect. We hold the action of the Acting Director to refuse to implement a final determination made by the PFRS Board of Trustees concerning what constitutes creditable compensation for pension purposes under N.J.S.A. 43:16A-1(26)(a) in these cases was ultra vires, without legal force or effect. Final determinations of the PFRS Board of Trustees are reviewable only by this court. N.J.A.C. 17:4-1.7(e); R. 2:2-3(a)(2).
     Judge Ashrafi has filed a separate concurrence.

ENVIROFINANCE GROUP, LLC AND EARTHMARK NJ KANE MITIGATION, LLC VS. ENVIRONMENTAL BARRIER COMPANY, LLC A-2475-12T4/

ENVIROFINANCE GROUP, LLC AND EARTHMARK NJ KANE
          MITIGATION, LLC VS. ENVIRONMENTAL BARRIER COMPANY, LLC
          A-2475-12T4/A-6202-12T3(CONSOLIDATED)
In this complex litigation, plaintiff EFG, provided construction financing to plaintiff Earthmark, to develop an
municipalities and the unions that represent police
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environmental
Meadowlands
contractor,
leasehold interest in the project when payment was not made. Defendant later moved for a default judgment against Earthmark and EFG attempted to oppose the motion. We concluded, as did the trial judge, EFG's secured creditor status was not a sufficient financial stake in the outcome to confer standing to

mitigation bank on wetlands owned by the Conservation Trust. Defendant, the primary filed construction liens against Earthmark's

challenge the nature and amount of obligations between Earthmark and defendant. EFG had the opportunity but chose not to invoke provisions of its financing agreements allowing it to assume Earthmark's role in the project.
Also examined were respective contract and equitable relief claims, including whether the construction liens were barred by the public works exception of N.J.S.A. 2A:44A-5(b). We upheld the liens, determining they did not attach to the public property, but to Earthmark's private leasehold interest. 

LISA LLEWELYN VS. JAMES SHEWCHUK A-0596-13T1


LISA LLEWELYN VS. JAMES SHEWCHUK
          A-0596-13T1
In this case, we consider whether an adult child made a sufficient showing that she is not emancipated and entitled to continued support from her father, who had adopted her at an early age and later became divorced from her mother. The daughter voluntarily left her mother's home at the age of twenty to live with her biological father, obtained part-time employment, sporadically attended school and arranged for her support in reliance upon the financial relationship she entered into with her biological father and his wife, who were under no obligation to support the daughter. We reject the daughter's argument she is not emancipated and that she has not moved beyond her parents' sphere of influence or responsibility or obtained an independent status of her own. While we recognize a child's right to pursue support from a parent, even if the child no longer resides with either, we affirm the Family Part's order, granting the father's motion to terminate child support because his adult daughter was emancipated. 

NEW JERSEY HEALTHCARE COALITION, ET AL. VS. NJ DEP'T OF BANKING AND INSURANCE //

NEW JERSEY HEALTHCARE COALITION, ET AL. VS. NJ DEP'T OF BANKING AND INSURANCE // NEW JERSEY COALITION FOR QUALITY HEALTHCARE VS. NJ DEP'T OF BANKING AND INSURANCE // NEW JERSEY ASS'N FOR JUSTICE VS. NJ DEP'T OF BANKING AND INSURANCE // UNITED ACUPUNCTURE SOCIETY OF NEW JERSEY VS. NJ DEP'T OF BANKING AND INSURANCE
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A-1038-12T2/A-1445-12T2/A-1636-12T2/A-1792-
          12T2(CONSOLIDATED)
On a facial challenge by health care providers and other interested parties, we upheld Department of Banking and Insurance regulations, governing reimbursement to health care providers in PIP cases and related issues. We noted that, in some important respects, the Department had clarified its interpretation of the regulations in ways that appeared to satisfy appellants' concerns, and we found the Department's interpretation of the regulations reasonable. We also considered the Department's expressed commitment to monitor the regulations as implemented, to ensure that accident victims are not prevented from obtaining prompt and appropriate medical treatment. We declined to adjudicate a challenge to a portion of the regulations that had not become effective pending planned further amendments. 03/31/15

RACHEL A. PARSONS, ET AL. VS. MULLICA TOWNSHIP BOARD OF EDUCATION, ET AL. A-0643-14T4


RACHEL A. PARSONS, ET AL. VS. MULLICA TOWNSHIP BOARD OF EDUCATION, ET AL.
A-0643-14T4 3/30/15 
Plaintiffs sued the Board of Education and the school nurse for failing to report the results of a school vision acuity screening as required by N.J.A.C. 6A:16-2.2(k)(6). We hold the nurse was not immune under N.J.S.A. 18A:40-4.5 as it applies only to the Act requiring scoliosis examinations. We hold the nurse and the Board are immune under N.J.S.A. 59:6-4 of the Tort Claims Act (TCA) for "failure . . . to make an adequate physical or mental examination." A vision screening is a physical examination under the TCA, and failure to report the results is a failure to make an adequate examination.
Reporting the results is a ministerial act, but N.J.S.A. 59:2-3 and 3-2 only exempt ministerial acts from the general discretionary immunity in those sections, not the specific immunities in the TCA. N.J.S.A. 59:6-4 provides absolute immunity, including for ministerial acts. That specific immunity trumps the TCA's general liability provisions, which are subject to any immunity provided by law. 

Terry Kuchera v. Jersey Shore Family Health Center


Terry Kuchera v. Jersey Shore Family Health Center
          (A-60-13; 073483)
          The site of plaintiffs fall was part of a nonprofit
          health care corporation organized exclusively for
          hospital purposes.  Defendants, therefore, are not
          entitled to absolute immunity, but rather are entitled
          to the limitation of damages afforded to nonprofit
          institutions organized exclusively for hospital
          purposes. 3-31-15   
In this appeal concerning a premises liability action, the Court addresses whether a health care facility is entitled to charitable immunity pursuant to N.J.S.A. 2A:53A-7, or the limited liability afforded to nonprofit entities organized exclusively for hospital purposes pursuant to N.J.S.A. 2A:53A-8. 
On Saturday, March 7, 2009, plaintiff attended a free eye screening conducted by the New Jersey Commission for the Blind and Visually Impaired (Commission) at the Jersey Shore Family Health Center (Family Health Center). After registering for her screening, plaintiff slipped and fell on the tile floor. As a result, plaintiff allegedly sustained injuries, including a torn ligament in her ankle, and herniated and bulging discs in her back.
The Family Health Center is a nonprofit charitable clinic in the Meridian Health hospitals system. It is located in Neptune in a separate building next to the Jersey Shore University Medical Center (Medical Center). The Family Health Center provides medical care for those “who are uninsured, underinsured, without a primary care physician and/or who lack access to regular medical care.” The Medical Center, a 600-bed hospital, is one of six hospitals that comprise the Meridian Health system. The Medical Center provides a spectrum of specialized care including cardiac, oncology, behavioral health, and pediatrics, and conducts several residency programs. Meridian Health and its constituent hospitals were organized as a nonprofit organization within the meaning of Section 501(c)(3) of the Internal Revenue Code. Meridian Health was organized, generally, to operate hospitals and health care facilities, to promote or carry on educational and research activities, to render necessary health care regardless of the patient’s ability to pay, and to promote and protect the health and welfare of the general public.
Plaintiff filed a complaint against the Family Health Center, the Medical Center, Meridian Health, and Modern Health Realty, the record owner of the property (collectively the Meridian Health defendants), seeking compensatory damages for her injuries. An initial motion for summary judgment was denied, but, on the day of trial, the Meridian Health defendants renewed their motion, and the trial judge conducted a hearing focused on the Medical Center’s status. Noting that the central issue was whether the entity is organized exclusively for hospital purposes or for religious, educational, and/or hospital purposes, the court determined that the Medical Center has a hybrid purpose that includes educational and charitable services as well as the operation of a hospital. The court, therefore, concluded that the Meridian Health defendants are entitled to the absolute immunity conferred on certain charitable organizations by N.J.S.A. 2A:53A-7, and dismissed plaintiff’s complaint with prejudice.
The Appellate Division affirmed in an unpublished decision. The panel accepted the hybrid purpose analysis, concluding that “in addition to maintaining a hospital, defendants also provide the beneficial services listed in [N.J.S.A. 2A:53A-7] and are, therefore, not engaged solely in hospital functions to the exclusion of educational and charitable purposes.” The Court granted plaintiff’s petition for certification. 217 N.J. 287 (2014).
HELD: The site of plaintiff’s fall was part of a nonprofit health care corporation organized exclusively for hospital purposes. Defendants, therefore, are not entitled to absolute immunity, but rather are entitled to the limitation of damages afforded to nonprofit institutions organized exclusively for hospital purposes.
1. The Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11 (CIA or the Act), provides immunity for certain charitable institutions. However, the Legislature’s codification of charitable immunity was not universal: certain personnel were not immune from liability for negligence, and nonprofit hospitals were granted a cap on damages from liability for negligence rather than immunity.  N.J.S.A. 2A:53A-7 to -13.1. (pp. 9-10).
2. To emphasize the distinction between certain entities, the CIA addressed nonprofits organized exclusively for charitable, religious, or educational purposes, and those organized for hospital purposes in separate sections.  N.J.S.A. 2A:53A-7 and -8. The most prominent distinction between nonprofit entities organized exclusively for charitable, religious, or educational purposes and nonprofits organized exclusively for hospital purposes is that the former are immune from liability, N.J.S.A. 2A:53A-7(a), while the latter are subject to liability for negligence, albeit with a cap on its damages, N.J.S.A. 2A:53A-8. The immunity bestowed by the CIA extends to the buildings and other facilities actually used for the purposes of the qualifying organization, such as a hospital.  N.J.S.A. 2A:53A-9. Further, N.J.S.A. 2A:53A-10 instructs that the CIA is remedial legislation and should be liberally construed so as to further the legislative purpose of immunity. (pp. 11-12) 
3. By the plain language of N.J.S.A. 2A:53A-7 and -8, a hospital is subject to limited liability under section 8 if it is formed as a nonprofit corporation, society, or association, is organized exclusively for hospital purposes, was promoting those objectives and purposes at the time the plaintiff was injured, and the plaintiff was a beneficiary of the activities of the hospital. Thus, this appeal is confined to the issue of whether the free eye screening conducted at the Family Health Center can be considered a hospital purpose. (pp. 13-14)
4. Few cases have addressed the phrase “organized exclusively for hospital purposes” in the context of the CIA. To begin, the term “exclusively” used in sections 7 and 8 of the CIA has been interpreted as meaning single or sole. Recently, the Court discussed the meaning of the phrase “organized exclusively for hospital purposes” in the context of considering whether an offsite facility owned and operated by a nonprofit hospital was exempt from local property taxation.  Hunterdon Med. Ctr. v. Twp. of Readington, 195 N.J. 549 (2008). There the Court stated that “the core aspects of a hospital’s purposes are to address the needs of all of the types of patients that a hospital is expected to serve,” and further held that the site of the delivery of the service does not detract from its inclusion as a hospital purpose.  Id. at 572. Thus, as recognized by the courts of this State and courts around the country, the modern hospital is a place where members of the community not only seek emergency services but also preventative services, therapy, educational programs, and counseling, and the conception of “hospital purposes” must expand to reflect the many health-related pursuits of the modern hospital. Accordingly, to advance the legislative mandate that the CIA be liberally construed to effectuate its purpose, the Court focuses on the many medical pursuits of a modern New Jersey hospital. (pp. 14-18)
5. Whether a nonprofit entity, whose certificate of incorporation and by-laws provide that it is organized exclusively for charitable, religious, educational, or hospital purposes, actually conducts its affairs consistent with its stated purpose often requires a fact-sensitive inquiry. After reviewing the principles applicable to a modern hospital, the Court concludes that the Meridian Health defendants, and specifically the Medical Center and its Family Health Center, are governed by the more specific expressions of legislative intent regarding hospitals articulated in N.J.S.A. 2A:53A-8. Thus, the Meridian Health defendants are subject to liability for negligence applicable to nonprofit corporations, associations, and societies organized exclusively for hospital purposes with any damage award capped at $250,000. The Appellate Division’s judgment to the contrary – specifically that the Meridian Health defendants were immune from liability pursuant to N.J.S.A. 2A:53A-7 – utilized a restrictive concept of a hospital that did not account for the multi-function nature of the modern hospital and its role in the provision of health care in this society. (pp. 19-23)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion. 
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON join in JUDGE CUFF’s opinion.

MANUEL GUAMAN, et al. v. JENNIFER VELEZ, COMMISSIONER OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES


MANUEL GUAMAN, et al. v. JENNIFER VELEZ, COMMISSIONER
          OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES, et al.
          (A-87-13; 073371)
          Judgment of the Appellate Division is affirmed,
          substantially for the reasons expressed in Judge
          Reisner’s majority opinion reported at 432 N.J. Super.
          230 (App. Div. 2013).  3-30-15 
Manuel Guaman, et al. v. Jennifer Velez, Commissioner of New Jersey Department of Human Services, et al. (A-87-13) (073371)

(NOTE: The Court did not write a plenary opinion in this case.  Instead, the Court affirms the judgment of the Appellate Division, substantially for the reasons expressed in Judge Reisner’s majority opinion reported at 432 N.J. Super. 230 (App. Div. 2013).  Two members of the Court dissent, substantially for the reasons expressed in Judge Harris’s dissenting opinion reported at 432 N.J. Super. 230, 249 (App. Div. 2013).)

Argued February 2, 2015 -- Decided March 30, 2015

PER CURIAM 

In this appeal, the Court considers whether, consistent with the United States Constitution and the New Jersey Constitution, the State may eliminate state-funded Medicaid benefits for adult legal permanent resident aliens who, because they do not meet the federal five-year residency requirement set forth in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), 8 U.S.C. §§ 1601-1646, do not qualify for federally-funded Medicaid benefits.

U.S.C. § 1601(3). PRWORA, in part, excludes lawfully admitted permanent resident aliens from receiving any Federal means-tested public benefit for a period of five years following their entry into the United States. 8 U.S.C. § 1613(a). 

New Jersey responded to PRWORA by excluding legal aliens from the Medicaid program unless they satisfied the Federal five-year residency requirement. In 2005, however, the State deleted the residency requirement in light of findings that limiting State subsidized healthcare coverage had resulted in increased costs for emergency hospital charity care. In 2010, due to a budget crisis, the Senate reinstated the five-year residency requirement for most adult legal aliens, continuing to provide coverage only for legal aliens who were pregnant women or children under the age of nineteen and for existing enrollees receiving on-going life sustaining treatment or treatment for life threatening illnesses. Additionally, per Medicaid Communication 10-01 and N.J.A.C. 10:78-3.2, legal resident aliens who did not meet the residency requirement were terminated from enrollment in the NJ FamilyCare Program, a state-funded Medicaid program offering subsidized health insurance to qualifying low-income adults and children.

2 On January 11, 2011, the Appellate Division granted plaintiffs, who are legal resident aliens who have resided in this country for less than five years, leave to file a motion for emergent relief seeking to enjoin the enforcement of the termination of their enrollment in FamilyCare. Plaintiffs contended, in part, that the termination of their benefits violates the equal protection guarantees of the Federal and State Constitutions. On July 12, 2011, the Appellate Division denied plaintiffs’ motion for a preliminary injunction, Guaman v. Velez, 421 N.J. Super. 239 (App. Div. 2011) (Guaman I), and this Court denied plaintiffs’ motion for leave to appeal.

2 On August 13, 2013, the Appellate Division issued a published opinion affirming the adoption and amendment of the relevant regulations and finding that the challenged policy does not violate either the Federal or State Constitutions.  Guaman v. Velez, 432 N.J. Super. 230 (2013) (Guaman II). The panel noted that it agreed with the legal analysis in Guaman I and that the opinions should be read together. It further explained that, although discrimination against aliens ordinarily must be justified under a strict scrutiny standard of review, Congress’s broad constitutional power over immigration means that the rational basis standard of review applies to Congressional enactments affecting immigrants and to state enactments authorized by a uniform federal policy. In support of this conclusion, the panel referred to Mathews v. Diaz, 426 U.S. 67 (1976), in which the United States Supreme Court reinforced the deference due to Congress’s authority over immigration-related benefit issues, noting that, not only may Congress treat aliens differently from citizens, but it may differentiate between different classes of aliens in determining how to distribute welfare benefits. The Court also determined that it is unquestionably reasonable for Congress to base an alien’s eligibility on the character and duration of his residence. Likewise, in Plyler v. Doe, 457 U.S. 202 (1982), the Court determined that if the Federal Government issued a uniform rule prescribing appropriate standards for the treatment of an alien subclass, states may follow that direction.

Considering the “uniform rule” doctrine in the context of PRWORA, the Appellate Division panel noted that 8 U.S.C. § 1601(7) expresses Congress’s finding that important national immigration policy is furthered by state statutes that follow the Federal classification in determining the eligibility of aliens for public assistance. The panel points out that Congress’s decision to leave the states some discretion to fund healthcare coverage for non-qualifying aliens does not necessarily mean that it created a “non-uniform” system. The question, then, is whether this statement of national policy, viewed in light of the overall structure of Medicaid, is sufficiently “uniform” to constitutionally authorize states to follow Congress’s policy choice. 

Viewing the uniform rule through a broad lens, the panel determined that when states conclude that they cannot afford to provide state Medicaid or Medicaid-like benefits to aliens, they are implementing Congress’s choice that recent immigrants should not unduly burden the public treasury. Moreover, in the face of a congressional decision to cut off funding for a group of aliens, states cannot be required to restore that coverage using solely state funds. Here, there is no dispute that the State opted to exclude legal resident aliens from FamilyCare for solely financial reasons, rather than some invidious discriminatory purpose. Thus, the panel held that the State’s action was authorized by PRWORA, falling “within the umbrella of the uniform policies articulated in § 1601,” and that neither the Federal nor State Constitutions bar the State from acting consistent with PRWORA by denying Medicaid benefits to legal aliens who do not meet the five-year residency requirement.

Judge Harris dissented, unable to reconcile the termination of long-provided, state-funded health insurance benefits for thousands of impoverished resident aliens with the principles of equality guaranteed by the Federal and State Constitutions. Specifically, Judge Harris does not agree that the State’s residency requirement is immunized by its mirroring of federal objectives, correspondence to an identifiable congressional policy, or harmony with the federal program. Consequently, Judge Harris would deem the regulations unconstitutional and would remand to the trial court to fashion appropriate remedies.

Plaintiffs appealed as of right.

HELD: The judgment of the Appellate Division is AFFIRMED, substantially for the reasons expressed in Judge Reisner’s majority opinion. 

CHIEF JUSTICE RABNER and JUSTICE ALBIN dissent, substantially for the reasons expressed in Judge Harris’s dissenting opinion. 

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in this opinion. CHIEF JUSTICE RABNER and JUSTICE ALBIN dissent. JUDGE CUFF (temporarily assigned) did not participate.

  

Wednesday, April 8, 2015

Mediation and Complementary Dispute Resolution


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.