{"id":1130,"date":"2012-10-23T12:15:09","date_gmt":"2012-10-23T16:15:09","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1130"},"modified":"2012-10-23T12:15:09","modified_gmt":"2012-10-23T16:15:09","slug":"mediation-enforceability-confidentiality-and-waiver-a-heady-brew","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2012\/10\/mediation-enforceability-confidentiality-and-waiver-a-heady-brew\/","title":{"rendered":"Mediation Enforceability, Confidentiality and Waiver: A Heady Brew"},"content":{"rendered":"

\u00a0Efforts to challenge the enforceability of settlements that are obtained through mediation almost always yield uncomfortable outcomes.\u00a0 A recent New Jersey Appellate Division decision is no exception.<\/p>\n

In Rutigliano v. Rutigliano<\/a> (Sup. Ct. App. Div. October 15, 2012), two brothers disputed their mother’s modification of her will in favor of one of the brothers’ children.\u00a0 The court ordered them to mediation pursuant to Court Rule 1:40<\/a>.\u00a0 After six and a half hours, the parties were convened by the mediator, who read out terms of a settlement.\u00a0 The mediator asked if the court should be advised that a settlement had been reached (as required by the Court Rule at 1:40-6(f)), and the parties agreed.\u00a0 The court docket was marked as settled in accordance with the mediator’s notification.<\/p>\n

A week later, plaintiff’s counsel notified defendant’s counsel that plaintiff did not believe there was a meeting of the minds, and offered different terms.\u00a0 Defendant insisted that the terms read at the mediation were final, and moved to enforce the deal despite there being no written agreement memorializing what had been read aloud by the mediator.<\/p>\n

The question then arose whether, pursuant to the New Jersey adoption of the Uniform Mediation Act<\/a>, the judge considering the motion would accept testimony from the parties or the mediator with respect to what happened at the time of the alleged agreement.\u00a0<\/p>\n

The judge determined not to consider testimony as to the mediation process itself,\u00a0but allowed each party, if they wished, to offer limited testimony as to what happened when the settlement was discussed by the parties in the final plenary session.\u00a0 The judge reasoned that, at that point, the mediation process had been completed and the session was purely informational.<\/p>\n

Defendant (the movant)\u00a0agreed to testify at the hearing but plaintiff did not, on the ground that\u00a0offering testimony with respect to any aspect of the mediation whatsoever\u00a0might be construed as a waiver of mediation confidentiality.\u00a0 Defendant proceeded to testify as to the terms of the agreement as announced in the final session, but not the negotiations leading to them.\u00a0 Defendant also testified that he affirmatively authorized the mediator to advise the court of the settlement, and plaintiff did not object to the mediator’s doing so.<\/p>\n

On appeal, plaintiff argued that the judge erred by permitting defendant to testify as to the terms of the settlement as they were set forth at the conclusion of the mediation.\u00a0 The Appellate Division affirmed the lower court, holding that, in an action to enforce an agreement reached after mediation, parties who authorize the mediator to advise the court of the existence of a settlement waive mediation confidentiality at least with respect to their actions in acknowledging the existence of that settlement.<\/p>\n

“Adopting plaintiff’s contrary view would mean that a party could complete the mediation; agree to all the terms of a settlement; authorize the mediator to notify the court of same; and then use the mediation privilege to prevent enforcement of the settlement.”<\/p><\/blockquote>\n

Mediation confidentiality has been used as both a sword and a shield in many enforcement actions.\u00a0 And\u00a0the distinction that the court here tries to draw — between a mediation process involving negotiation and a non-mediation process involving discussion and approval of settlement terms reached during the mediation\u00a0— is not one that commands a lot of confidence.\u00a0<\/p>\n

The best way to avoid actions such as this is in the hands of the skilled mediator.\u00a0 A mediator should in no instance<\/em> allow the parties to leave the mediation room without a signed agreement memorializing the essential terms of the settlement and noting an\u00a0intention to be bound by those terms.\u00a0 Nor should a mediator (at least in New Jersey) advise the court that a matter has been settled until such a document has been executed.<\/p>\n

This used to be recommended as a “best practice”; now it is becoming a minimal mediator skill.\u00a0 On a yellow pad, the attorneys (not the mediator<\/em>) set forth in bullet points the essential terms of the deal.\u00a0 They write on the top of the paper “Memorandum of Understanding,” they write on the bottom of the paper signature blocks.\u00a0 And the last bullet point on the paper recites something like:\u00a0 “Although\u00a0more formal documentation will follow, including\u00a0releases and a stipulation of settlement, the parties intend to be bound by the terms set forth above<\/em>.”<\/p>\n

Such a simple requirement, so often overlooked, to the sorrow of the parties.\u00a0 If you have agreed upon terms, say so.\u00a0 That’s not so hard for a mediator to insist upon, is it?\u00a0 And, fellow mediators, surely we owe the parties no less than an enforceable outcome?<\/p>\n","protected":false},"excerpt":{"rendered":"

A New Jersey Appellate court accepts mediation testimony upon a finding of party waiver of confidentiality<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[40,14],"tags":[15,33],"class_list":["post-1130","post","type-post","status-publish","format-standard","hentry","category-courts","category-mediation","tag-mediation","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1130","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1130"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1130\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1130"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1130"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1130"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}