Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

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Mediation

  1. How Can A Mediator Be Of Assistance?


  2. The Uniform Mediation Act, N.J.S.A. 2A:23C-1 to 14, regulates the process of mediation in certain instances, but NOT in all instances [see N.J.S.A. 2A:23C-3].


  3. N.J. Court Rule 1:40 applies to Complementary Dispute Resolution Programs conducted under judicial supervision, including mediation [see R. 1:40-4].


  4. Evidence Rule 408: Evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, shall not be admissible to prove liability; BUT, such evidence MAY be admissible for other purposes.


  5. Charles C. Abut, Esq. once stated:
    In Mediation, the parties are not bound to follow the law; however, the parties often ask:
    Thus, all negotiations take place "in the shadow of the Courthouse."


  6. In Lerner v. Laufer, 359 N.J. Super. 201 (App. Div.), certif. den. ___ N.J. ___ (2003), the court discusses the situation where a client wants to limit the scope of an attorney's representation.

    Additional information can be obtained from Lerner v. Laufer: What Does It Mean For Your Practice?, published by ICLE.


  7. In State v. Williams, __ N.J. __ (2005) [Docket No. A-61-04; Decided July 28, 2005], the Court analyzed the tension between the need for the mediator’s testimony and the public’s interest in mediation confidentiality.

    To view the Supreme Court of New Jersey Oral Argument Web-page, click here.


  8. Law Lessons from LEHR v. AFFLITTO (App. Div., A-6992-03T2, approved for publication January 19, 2006):

    The issue of the confidentiality of mediation proceedings is a matter of great public and systemic importance. See State v. Williams, 184 N.J. 432, 446-50 (2005). Underpinning the success of mediation in our court system is the assurance that what is said and done during the mediation process will remain confidential, unless there is an express waiver by all parties or unless the need for disclosure is so great that it substantially outweighs the need for confidentiality.

    R. 1:40- 4(c) deals with confidentiality of the mediation process. The relevant parts of the rule state: 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 quasicriminal proceeding. A party may, however, establish the substance of the disclosure in any such proceeding by independent evidence . . . . 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.
    [R. 1:40-4(c).]

    N.J.S.A. 2A:23C-4a provides that unless one of the exceptions outlined in N.J.S.A. 2A:23C-6 are applicable, or unless waived pursuant to N.J.S.A. 2A:23C-5, a "mediation communication" is privileged and "shall not be subject to discovery or admissible in evidence in a proceeding[.]" A party to mediation "may refuse to disclose, and may prevent any other person for disclosing, a mediation communication[,]" N.J.S.A. 2A:23C-4b(1), and "a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator." N.J.S.A. 2A:23C- 4b(2).

    These privileges contained in N.J.S.A. 2A:23C-4 "may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: (1) in the case of the privilege of a mediator, it is expressly waived by the mediator[.]" . N.J.S.A. 2A:23C-6, entitled "Exceptions to privilege," provides in part: a. There is no privilege under [N.J.S.A. 2A:23C-4] for a mediation communication that is:
    (1) in an agreement evidenced by a record signed by all parties to the agreement;
    (2) made during a session of a mediation that is open, or is required by law to be open, to the public;
    (3) a threat or statement of a plan to inflict bodily injury or commit a crime;
    (4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
    (5) sought or offered to prove or disprove a claim or complaint filed against the mediator arising out of a mediation;
    (6) except as otherwise provided in subsection c., sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
    (7) sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Human Services is a party, unless the Division of Youth and Family Services participates in the mediation.

    N.J.S.A. 2A:23-6 provides in part as follows:
    b. There is no privilege under [N.J.S.A. 2A:23C-4] if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
    (1) a court proceeding involving a crime as defined in the "New Jersey Code of Criminal Justice," N.J.S. 2C:1-1 et seq.; or
    (2) except as otherwise provided in subsection c., a proceeding to prove a claim to rescind or reform a defense to avoid liability on a contract arising out of the mediation.
    c. A mediator may not be compelled to provide evidence of a mediation communication referred to in paragraph (6) of subsection a. or paragraph (2) of subsection b.
    d. If a mediation communication is not privileged under subsection a. or b., only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection a. or b. does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

    In Williams, 184 N.J. at 441, the Court interpreted R. 1:40-4(c) and concluded that under a plain reading of the rule, a mediator is generally prevented from testifying as a witness in a trial or hearing related to the mediated matter. Id. at 441.As the Court explained: Courts have long-recognized that public policy favors settlement of legal disputes, see, e.g., Nolan ex rel. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), and that confidentiality is a "fundamental ingredient of the settlement process," Brown v. Pica, 360 N.J. Super. 565, 568 (Law Div. 2001).
    * * * *
    Successful mediation, with its emphasis on conciliation, depends on confidentiality perhaps more than any other form of ADR. See Foxgate Homeowners' Ass'n, Inc. v. Bramalea Cal., Inc., 26 Cal.4th 1, 108 Cal. Rptr.2d 642, 25 P.3d 1117, 1126 (Cal. 2001) ("Confidentiality is essential to effective mediation . . . ."). Confidentiality allows "the parties participating [to] feel that they may be open and honest among themselves . . . . Without such assurances, disputants may be unwilling to reveal relevant information and may be hesitant to disclose potential accommodations that might appear to compromise the positions they have taken." Final Report of the Supreme Court Task Force on Dispute Resolution 23 (1990); see also Prigoff, 12 Seton Hall Legis. J. at 2 ("Compromise negotiations often require the admission of facts which disputants would never otherwise concede."). . . . Mediation communications, which "would not [even] exist but for the settlement attempt," are made by parties "without the expectation that they will later be bound by them." Prigoff, 12 Seton Hall Legis. J. at 2, 13. Ultimately, allowing participants to treat mediation as a factfinding expedition would sabotage its effectiveness. See id. at 2 (warning that routine breaches of confidentiality would reduce mediation to "discovery device"). If mediation confidentiality is important, the appearance of mediator impartiality is imperative. A mediator, although neutral, often takes an active role in promoting candid dialogue "by identifying issues [and] encouraging parties to accommodate each others' interests." Id. at 2. To perform that function, a mediator must be able "to instill the trust and confidence of the participants in the mediation process. That confidence is insured if the participants trust that information conveyed to the mediator will remain in confidence. Neutrality is the essence of the mediation process." Isaacson v. Isaacson, 348 N.J. Super. 560, 575 (App. Div. 2002) (interpreting Rule 1:40-4). Thus, courts should be especially wary of mediator testimony because "no matter how carefully presented, [it] will inevitably be characterized so as to favor one side or the other." Prigoff, 12 Seton Hall Legis. J. at 2; see also In re Anonymous, 283 F.3d 627, 640 (4th Cir. 2002) ("If [mediators] were permitted or required to testify about their activities, . . . not even the strictest adherence to purely factual matters would prevent the evidence from favoring or seeming to favor one side or the other." (alteration in original) (quoting NLRB v. Macaluso, Inc., 618 F.2d 51 (9th Cir. 1980))); Ellen Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?, 85 Marq. L. Rev. 79, 82 (2001) ("If a mediator can be converted into the opposing party's weapon in court, then her neutrality is only temporary and illusory.").
    [Id. at 446-448.]


  9. Law Lessons from Werner v. Werner (App. Div., Docket No. A-2659-04T2, Decided November 17, 2005, not approved for publication):

    In this case, the parties included the following Escalation Clause in their Property Settlement Agreement (the "PSA"):

    With Specificity, the parties agree on the following limitations regarding a decrease in child support:
    A. If Husband, through no fault of his own, loses his job or has a decrease in income, he would be able to apply under LEPIS for a modification of his child support obligation and Wife would have a right to be heard on that issue.
    B. The Court may or may not decrease support at the time of hearing, however, if Wife incurs an increase in her income (currently approximately between $8,000 and $14,000), and even if she incurs a substantial increase in her income, as part of the Agreement, Husband will not seek any decrease in child support as a result of such an increase.
    C. Husband will provide Wife with copies of his annual Federal and State tax returns, as well as his W-2's and 1099's, by May 31st of each year. Any increase in Husband's gross income, beyond his current earnings of $72,000.00, will be reported to Wife within 10 days. The parties agree that 35% of any increase in Husband's net income will be paid by Husband to Wife as additional child support. Net pay is defined as gross earnings less federal taxes, state withholding taxes, FICA, Medicare, SUI and other mandatory withholdings. This does not include any deductions for student loans and existing tax arrears that Husband is currently paying, and any pension loans he may take, or any other similar liens. In other words, those are not deductible in calculating net earnings.

    Later, when asked to modify alimony, the Court held:

    In Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004), the Court held that the agreement of the parties [the PSA], particularly when it is incorporated into a judgment of the court, is entitled to deference and its contents should be given significant consideration. Public policy favors the enforcement of consensual arrangements for support. Ibid. (citations omitted). The enforcement of such arrangements provides the parties with stability in their affairs. Ibid.

    The overall analysis regarding whether or not to modify a PSA is one of equity. The court must consider:
    (1) the adequacy of the agreement at inception, the presumed understanding of the parties at that time,
    (2) the reasonable expectation of the parties during the life of the agreement,
    (3) the manner in which the parties acted and relied on the agreement [and]
    (4) the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.
    Ibid.


  10. Law Lessons from Jergensen v. Jergensen (App. Div., A-1280-04T1, November 18, 2005, not approved for publication): There are too many cases in which the parties' antipathy toward each other has precipitated the children's resistance to one parent or the other. As we stated in Tahan v. Duquette, 259 N.J. Super. 328 (App. Div. 1992): Both [parents] must come to understand that security, peace of mind and stability are every child's right. [The parents'] inability to deal constructively with each other deprives their child[ren] of [their] due, which is within [the parents'] power to give. Professed love is no substitute where it results in turmoil and uncertainty for the child who is pulled in opposite directions by his parents. [The children] will receive what [they] desperately need[] in this regard only if both parties are genuinely prepared to subordinate their individual needs to the best interest[s] of the child[ren] and begin to communicate with each other solely for the benefit of the child[ren]. We urge the parties to make an effort to resolve this matter between themselves with professional assistance. Otherwise, there is a substantial risk that they will doom their [children] to a future of conflict, sadness and certain psychological harm. [Id. at 336.]


  11. Law Lessons from SCHWITZER v. SCHWITZER (App. Div., A-22-04T1, January 25, 2006, not approved for publication):

    The Supreme Court has recognized that "arbitration of matrimonial disputes may offer an effective alternative method of dispute resolution." Faherty v. Faherty, 97 N.J. 99, 107 (1984); see also Chen v. Chen, 297 N.J. Super. 480, 489 (App. Div. 1997). In Faherty, the Court noted that the advantages of arbitration in domestic relations cases include: "reduced court congestion, the opportunity for resolution of sensitive matters in a private and informal forum, reduction of the trauma and anxiety of marital litigation, minimization of the intense polarization of the parties that often occurs, and the ability to choose the arbitrator." Id. at 107-08.
    In Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349 (1994), the Court adopted the rule governing judicial review of arbitration set forth in Chief Justice Wilentz's concurring opinion in Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 496 (1992):
    Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. [They] can be corrected or modified only for very specifically defined mistakes as set forth in [N.J.S.A. 2A:24-9]. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award.
    [Tretina, supra, 135 N.J. at 358 (alterations in original) (quoting Perini, supra, 129 N.J. at 548 (Wilentz, C.J., concurring)).]
    Thus, a court may vacate an arbitration award only on the narrow grounds specified in N.J.S.A. 2A:24-8:
    The court shall vacate the award in any of the following cases:
    a. Where the award was procured by corruption, fraud or undue means;
    b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
    c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
    d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
    [Ibid. (emphasis added).]

    Where parties voluntarily agree to arbitration, the "arbitrator's jurisdiction . . . hinges upon 'what the . . . parties to the contract have agreed should be submitted to arbitration.'" Chen, supra, 297 N.J. Super. at 489 (quoting Laborers' Local Union v. Interstate Curb & Sidewalk, 90 N.J. 456, 463 (1982)).


  12. In Positive Software Solutions v. New Century Mortgage (5th Cir., filed January 11, 2006), a case involving the interpretation of the United States Arbitration Act, 9 U.S.C. §§ 1-14, the Court held that an arbitrator’s failure to disclose that seven years before the arbitration, he and his former law firm were co-counsel in a lengthy litigation matter with one of the law firms and counsel in this matter, justifies vacating the award. The Court held that the arbitrator was required to disclose the relationship because it might have created an impression of possible bias.

    The Court also held that an arbitrator selected by the parties displays evident partiality by the very failure to disclose facts that might create a reasonable impression of the arbitrator’s partiality. The evident partiality is demonstrated from the nondisclosure, regardless of whether actual bias is established.

    The Court stated that while an arbitrator to be selected by the parties need not disclose relationships that are trivial, an arbitrator should always err in favor of disclosure.


  13. Law Lessons from NOLAN v. FLECK (App. Div., A-5727-04T2, April 17, 2006, not approved for publication): Where one of the parties fails to honor their obligation under the parties' agreement to mediate the dispute prior to filing an application with the court, a judge can deny an application for a plenary hearing on that basis alone. See Whitfield v. Whitfield, 315 N.J. Super. 1, 13-14 (App. Div. 1998).


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