Civil Court Rules and Jury Charges

Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817

Thursday, March 26, 2009

03-19-09 Barber v. Shoprite of Englewood A-6311-05T2

03-19-09 Joyce Barber and Michael James Barber, Her Husband v.
Shoprite of Englewood & Associates, Inc.
A-6311-05T2

1. The cumulative effect of numerous errors that are not
individually reversible may result in an unfair trial warranting
reversal and a new trial under the cumulative error doctrine.

2. Where an attorney-juror undertakes to explain legal
terms from the jury charge to the other jurors, those
explanations may have a "tendency" to influence the verdict and
warrant(1951).

4:11-1. Before Action

(a) Petition. A person who desires to perpetuate his or her own testimony or that of another person or preserve any evidence or to inspect documents or property or copy documents pursuant to R. 4:18-1 may file a verified petition, seeking an appropriate order, entitled in the petitioner's name, showing: (1) that the petitioner expects to be a party to an action cognizable in a court of this State but is presently unable to bring it or cause it to be brought; (2) the subject matter of such action and the petitioner's interest therein; (3) the facts which the petitioner desires to establish by the proposed testimony or evidence and the reasons for desiring to perpetuate or inspect it; (4) the names or a description of the persons the petitioner expects will be opposing parties and their addresses so far as known; (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and (6) the names and addresses of the persons having control or custody of the documents or property to be inspected and a description thereof. The court may also grant a pre-complaint petition for depositions filed pursuant to this rule by a person asserting that due to extraordinary circumstances, which shall be explained in detail by affidavit, such depositions are necessary to enable compliance with N.J.S.A. 2A:53a-27 to -29 (Affidavit of Merit Statute).

(b) Notice and Service. At least 20 days before the date of hearing the petitioner shall serve upon each person named in the petition as an expected adverse party, in the manner provided by R. 4:4-4 and R. 4:4-5(a), a notice, with a copy of the petition attached, stating the time and place of the application for the order described in the petition. If it appears to the court after diligent inquiry that such service cannot be made, the court may order service by publication or otherwise, and shall appoint an attorney to represent persons so served, who, if such persons are not otherwise represented, may cross-examine the deponent. Such attorney's compensation may be fixed by the court and charged to the petitioner. The provisions of R. 4:26-2 apply if any expected adverse party is a minor or mentally incapacitated person.

(c) Order and Examination. If the court finds that the perpetuation of the testimony or evidence or the inspection may prevent a failure or delay of justice, it shall make an order designating or describing the evidence to be preserved, or the documents or property to be inspected or the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions or inspection may then be taken in accordance with these rules; and the court may make such orders as are provided for by R. 4:18 and R. 4:19.

(d) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the United States or of the state in which it is taken, it may, in accordance with the provisions of R. 4:16-1 and R. 4:16-2, be used in any action between the same parties or their privies involving the same subject matter, which is subsequently brought in any court of this State having cognizance thereof.

Tuesday, March 24, 2009

4:10-4. Sequence and Timing of Discovery

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not, of itself, operate to delay any other party's discovery.

4:10-3. Protective Orders

On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following:

(a) That the discovery not be had;

(b) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(c) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(d) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(e) That discovery be conducted with no one present except persons designated by the court;

(f) That a deposition after being sealed be opened only by order of the court;

(g) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(h) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion.

When a protective order has been entered pursuant to this rule, either by stipulation of the parties or after a finding of good cause, a non-party may, on a proper showing pursuant to R. 4:33-1 or R. 4:33-2, intervene for the purpose of challenging the protective order on the ground that there is no good cause for the continuation of the order or portions thereof. Neither vacation nor modification of the protective order, however, establishes a public right of access to unfiled discovery materials.

4:10-2. Scope of Discovery; Treating Physician

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(a) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of the matters as to which discovery is sought.

(b) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

(c) Trial Preparation; Materials. Subject to the provisions of R. 4:10-2(d), a party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R. 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (1) a written statement signed or otherwise adopted or approved by the person making it, or (2) a stenographic, mechanical, electronic, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(d) Trial Preparation; Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of R. 4:10-2(a) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(1) A party may through interrogatories require any other party to disclose the names and addresses of each person whom the other party expects to call at trial as an expert witness, including a treating physician who is expected to testify and, whether or not expected to testify, of an expert who has conducted an examination pursuant to R. 4:19 or to whom a party making a claim for personal injury has voluntarily submitted for examination without court order. The interrogatories may also require, as provided by R. 4:17-4(a), the furnishing of a copy of that person's report. Discovery of communications between an attorney and any expert retained or specially employed by that attorney occurring before service of an expert's report is limited to facts and data considered by the expert in rendering the report. Except as otherwise expressly provided by R. 4:17-4(e), all other communications between counsel and the expert constituting the collaborative process in preparation of the report, including all preliminary or draft reports produced during this process, shall be deemed trial preparation materials discoverable only as provided in paragraph (c) of this rule.

(2) Unless the court otherwise orders, an expert whose report is required to be furnished pursuant to subparagraph (1) may be deposed as to the opinion stated therein at a time and place as provided by R. 4:14-7(b)(2). Unless otherwise ordered by the court, the party taking the deposition shall pay the expert or treating physician a reasonable fee for the appearance, to be determined by the court if the parties and the expert or treating physician cannot agree on the amount therefor. The fee for the witness's preparation for the deposition shall, however, be paid by the proponent of the witness, unless otherwise ordered by the court.

(3) A party may discover facts known or opinions held by an expert (other than an expert who has conducted an examination pursuant to R. 4:19) who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. If the court permits such discovery, it shall require the payment of the expert's fee provided for by R. 4:10-2(d)(2), and unless manifest injustice would result, the payment by the party seeking discovery to the other party of a fair portion of the fees and expenses which had been reasonably incurred by the party retaining the expert in obtaining facts and opinions from that expert.

(4) A party shall not seek a voluntary interview with another party's treating physician unless that party has authorized the physician, in the form set forth in Appendix XII-C, to disclose protected medical information.

(e) Claims of Privilege or Protection of Trial Preparation Materials.

(1) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(2) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable efforts to retrieve it. The producing party must preserve the information until the claim is resolved.

(f) Claims that Electronically Stored Information is not Reasonably Accessible. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought shall demonstrate that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court nevertheless may order discovery from such sources if the requesting party establishes good cause, considering the limitations of R. 4:10-2(g). The court may specify conditions for the discovery.

(g) Limitation on Frequency of Discovery. The frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the court if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act pursuant to a motion or on its own initiative after reasonable notice to the parties.

4:10-1. Discovery Methods

Except as otherwise provided by R. 5:5-1 (discovery in family actions), parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admissions. Unless the court orders otherwise under R. 4:10-3, the frequency of use of these methods is not limited.

4:9-4. Supplemental Pleadings

On motion by a party the court may, upon reasonable notice and on terms, permit that party to serve a supplemental pleading setting forth transactions or occurrences which took place after the date of the pleading sought to be supplemented. A motion for leave to file a supplemental pleading shall have annexed thereto a copy of the proposed pleading. The court may require the opposing party to plead thereto, specifying in its order the time therefor.

4:9-3. When Amendments Relate Back

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced inmaintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment.

4:9-2. Amendments to Conform to the Evidence

When issues not raised by the pleadings and pretrial order are tried by consent or without the objection of the parties, they shall be treated in all respects as if they had been raised in the pleadings and pretrial order. Such amendment of the pleadings and pretrial order as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend shall not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings and pretrial order, the court may allow the pleadings and pretrial order to be amended and shall do so freely when the presentation of the merits of the action will be thereby subserved and the objecting party fails to satisfy the court that the admission of such evidence would be prejudicial in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

4:9-1. Amendments

A party may amend any pleading as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is to be served, and the action has not been placed upon the trial calendar, at any time within 90 days after it is served. Thereafter a party may amend a pleading only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice. A motion for leave to amend shall have annexed thereto a copy of the proposed amended pleading. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders.

4:8-2. Third Party Brought in by Plaintiff

A plaintiff against whom a counterclaim is asserted may cause a third party to be brought in under circumstances which under R. 4:8-1 would entitle a defendant to do so and in the manner prescribed by R. 4:8-1.

4:8-2. Third Party Brought in by Plaintiff

A plaintiff against whom a counterclaim is asserted may cause a third party to be brought in under circumstances which under R. 4:8-1 would entitle a defendant to do so and in the manner prescribed by R. 4:8-1.

4:8-1. Third Party Brought in by Defendant

(a) Procedure for Bringing in Third Party; As of Right or on Order. Within 90 days after the service of the original answer, a defendant, as third-party plaintiff, may file and serve a summons and third-party complaint, together with a copy of plaintiff's complaint, upon a person not a party to the action who is or may be liable to defendant for all or part of the plaintiff's claim against defendant and may also assert any claim which defendant has against the third-party defendant involving a common question of law or fact arising out of the same transaction or series of transactions as the plaintiff's claim. The third-party plaintiff shall serve a copy of the third-party complaint upon the plaintiff within 5 days after service thereof upon the third-party defendant. After the expiration of such 90 day period, a defendant may serve such summons and third-party complaint upon a third-party defendant only by leave of court, on notice to the plaintiff, annexing a copy of the proposed third-party complaint to the notice of motion.

(b) Procedure After Third Party Is Joined. The third-party defendant shall assert defenses to the third-party plaintiff's claim as provided by R. 4:6 and shall assert counterclaims against the third-party plaintiff and cross-claims against the other third-party defendants as provided by R. 4:7. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff, within 45 days after being served with the third-party complaint, or, if the defendant has sought leave, within 45 days after being served with the order granting such leave, may amend the complaint to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of plaintiff's claim against the third-party plaintiff; thereafter plaintiff may so amend the complaint only by leave of court on notice to the parties to the action. The third-party defendant thereupon shall assert defenses as provided by R. 4:6 and counterclaims and cross-claims as provided by R. 4:7. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. The mandatory joinder provisions of R. 4:30A shall apply to all affirmative claims assertible pursuant to this rule, and discovery shall proceed as provided by R. 4:24-1.

Tuesday, March 17, 2009

4:7-7. Separate Trials; Separate Judgment

If the court orders separate trials as provided by R. 4:38-2, judgment on a counterclaim orcross-claim may be rendered in accordance with R. 4:42-2 (judgment upon multiple claims) even if the claims of the opposing party have not been dismissed or otherwise disposed of.

4:7-6. Additional Parties May Be Brought In

Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of R. 4:28 and 4:29.

4:7-5. Cross-Claim Against Co-party; Claim for Contribution or Claim for Indemnity

(a) Cross-Claim. Except as otherwise provided by R. 4:67-4 (summary actions) and subject to the mandatory joinder provisions of R. 4:30A a pleading may state as a cross-claim by one party against a co-party including a claim that the latter is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(b) Claim for Contribution or Claim for Indemnity. A defendant shall assert a claim for contribution or indemnity against any party to the action by inserting in the answer above the signature and under the heading "Claim for Contribution" or "Claim for Indemnity", a general demand for contribution or indemnity from a named party and specifying the statute under which such claim is made, but without setting forth the facts upon which the claim is based. If a claim for contribution or indemnity is made, the answer shall be served upon the parties against whom such relief is sought and no responsive pleading thereto need be filed. A motion at trial for the dismissal of the complaint as against a co-defendant shall be made and proceeded upon in accordance with R. 4:37-2(c).

(c) Time for Assertion. Cross-claims may be asserted by any defendant as of right within 90 days after service upon the defendant of the original complaint or after service of the complaint upon the party against whom the cross-claim is asserted, whichever is later. A cross-claim may be thereafter asserted only by leave of court, which shall be freely given. A copy of the proposed cross-claim shall be annexed to the notice of motion seeking such leave. A non-settling defendant's failure to have asserted a cross-claim for contribution against a settling defendant, however, shall not preclude either an allocation of a percentage of negligence by the finder of fact against the settling defendant or a credit in favor of the non-settling defendant consistent with that allocation, provided plaintiff was fairly apprised prior to trial that the liability of the settling defendant remained an issue and was accorded a fair opportunity to meet that issue at trial.

4:7-4. Omitted Counterclaim

When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the counterclaim may be set up by leave of court by amendment.

4:7-3. Counterclaim Maturing or Acquired After Pleading

A claim which either matured or was acquired by the pleader after service of the pleading may, by leave of court, be presented as a counterclaim by supplemental pleading.

4:7-2. Counterclaim Exceeding Opposing Claim

A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from or not germane to that sought in the pleading of the opposing party.

4:7-1. Mandatory or Permissive Counterclaims

Except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4 (summary actions), a pleading may state as a counterclaim any claim against the opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. A defendant, however, either failing to comply with R. 4:30A (entire controversy doctrine) or failing to set off a liquidated debt or demand or a debt or demand capable of being ascertained by calculation, shall thereafter be precluded from bringing any action for such claim or for such debt or demand which might have been so set off.

4:6-7. Waiver or Preservation of Defenses

Defenses (b) (c) and (d) in R. 4:6-2 are waived if not raised by motion pursuant to R. 4:6-3 or if omitted from a previously made motion to which R. 4:6-6 is applicable. Defenses (e) and (f) and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered, or by motion for summary judgment or at the trial on the merits. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter except as otherwise provided by R. 1:13-4.

4:6-6. Consolidation of Defenses

A party making a motion under R. 4:6 may join with it the other motions herein provided for and then available. If such motion omits therefrom any defense or objections then available which R. 4:6 permits to be raised by motion, the party shall not thereafter make a motion based on any such omitted defenses or objections, except as provided in R. 4:6-7.

4:6-5. Motion to Strike for Insufficiency

On motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, on motion made within 20 days after the service of the pleading upon the party, or upon the court's own initiative at any time, the court may order stricken from any pleading any defense insufficient in law.

4:6-4. Motion for More Definite Statement or to Strike or Dismiss for Impropriety of Pleading

(a) More Definite Statement. If a responsive pleading is to be made to a pleading which is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court not complied with within 10 days after notice of the order or within such other time as the court fixes, the court may strike the pleading to which the motion was directed or make such order as it deems appropriate. The statement shall become a part of the pleading which it supplements.

(b) Impropriety of Pleading. On the court's or a party's motion, the court may either (1) dismiss any pleading that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with R. 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claimor defense based on the same transaction, the payment by the pleading party of attorney's fees and costs incurred by the party who moved for dismissal.

4:6-3. Required Motions; Preliminary Hearings

Defenses (a) (e) and (f) in R. 4:6-2, whether made in an answer or by motion, shall be heard and determined before trial on application of any party, unless the court for good cause orders that the hearing and determination thereof be deferred until the trial. Defenses (b) (c) and (d) in R. 4:6-2 shall be raised by motion within 90 days after service of the answer, provided that defense has been asserted therein and provided, further, that no previous motion to which R. 4:6-6 is applicable has been made.

4:6-2. How Presented

Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint, counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except that the following defenses may at the option of the pleader be made by motion, with briefs: (a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of process, (e) failure to state a claim upon which relief can be granted, (f) failure to join a party without whom the action cannot proceed, as provided by R. 4:28-1. If a motion is made raising any of these defenses, it shall be made before pleading if a further pleading is to be made. No defense or objection is waived by being joined with one or more other defenses in an answer or motion. Special appearances are superseded. If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.

4:6-1. When Presented

(a) Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8-1(b) (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(i) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and complaint on that defendant. If service is made as provided by court order, pursuant to R. 4:4-4(b)(3), the time for service of the answer may be specified therein. Service of the answer shall be complete as provided by R. 1:5-4. A party served with a pleading stating a counterclaim or crossclaim against that party shall serve an answer thereto within 35 days after the service upon that party. A reply to an answer, where permitted, shall be served within 20 days after service of the answer.

(b) Time; Effect of Certain Motions. Unless the court fixes a different time period, the time periods prescribed in paragraph (a) of this rule are altered by the filing and service of a motion under R. 4:6 or for summary judgment under R. 4:46 or R. 4:69-2 as follows: (1) if the motion is denied in whole or part or its disposition postponed until trial, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if a motion for a more definite statement is granted, the responsive pleadings shall be served within 10 days after the service of such statement. If notice is given a nonresident party demanding security for costs and the nonresident gives notice of the filing of the bond or the making of the deposit, the party making the demand shall then have the same time to plead as may have remained at the time of the service of the notice demanding the security.

(c) Time; Extension by Consent. The time for service of a responsive pleading may be enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be filed with the responsive pleading within said 60-day period. Further enlargements shall be allowed only on notice by court order, on good cause shown therefor.

(d) Certificate of Service. The party filing the responsive pleading or the party's attorney shall certify thereon, or in an acknowledgment, proof or certificate of service, that the pleading was served within the time period allowed by R. 4:6 or other rule specified in the certificate.

4:5B-3. Settlement Conferences

The court may conduct a settlement conference or schedule any other settlement event in any civil action on its or a party's request. Except in Track IV cases, there shall be no more than one court-initiated or court-mandated settlement conference or other settlement event prior to the trial date. Notwithstanding the conduct of a settlement conference or other settlement event as herein provided, a second settlement conference may be conducted on the trial date and immediately prior to the commencement of trial, provided that trial shall then forthwith proceed if settlement is not reached. The settlement conference need not be conducted by the designated pretrial judge.

4:5B-2. Case Management Conferences

In cases assigned to Tracks I, II, and III, the designated pretrial judge may sua sponte or on a party's request conduct a case management conference if it appears that such a conference will assist discovery, narrow or define the issues to be tried, address issues relating to discovery of electronically stored information, or otherwise promote the orderly and expeditious progress of the case. A case management conference shall not, however, ordinarily be conducted after the case is ready for trial. In Track IV cases, except for actions in lieu of prerogative writs and probate and general equity actions, an initial case management conference shall be conducted as soon as practicable after joinder and, absent exceptional circumstances, within 60 days thereafter. In actions in lieu of prerogative writs, case management conferences shall be held pursuant to R. 4:69-4. In probate actions, case management conferences may be scheduled at the discretion of the judge. In all actions in general equity, except summary actions pursuant to R. 4:67 and foreclosure actions, an initial case management conference shall be held within 30 days following the filing of the answers of all defendants initially joined, and the court may hold such additional case management conferences as it deems appropriate. All decisions and directives issued at a case management conference shall be memorialized by order as required by R. 1:2-6. The order may include provisions for disclosure of discovery of electronically stored information and any agreements the parties reach for asserting claims of privilege or protection as trial preparation material after production.

4:5B-1. Assignment for Case Management

At the time the complaint is filed, the action shall be assigned to a designated judge, who shall, except as otherwise provided by R. 4:24-1(c), preside over all pretrial motions and management conferences in the cause until completion of discovery as provided by R. 4:36-2. Any application made to the court thereafter shall be made to the Civil Presiding Judge or designee. In Track IV and general equity cases, however, the designated managing judge shall, insofar as is practicable and absent exceptional circumstances, also preside at trial.

4:5A-2. Notice of Track Assignment; Change of Assignment

(a) Notice of Track Assignment. Within ten days after the filing of the complaint, the court shall mail a notice of track assignment to the plaintiff. The plaintiff shall annex a copy of the notice to process served on each defendant.

(b) Change of Track Assignment. Within 30 days after receipt of the track assignment notice, plaintiff may apply to the court for a change of track assignment by filing a certification of good cause. Any party other than the plaintiff seeking a change of track assignment shall file and serve a certification of good cause with its first pleading and any objection thereto shall be made by responding certification filed and served within ten days. Any party aggrieved by the court's determination on such application may seek relief therefrom by motion filed and served within 15 days thereafter. After the expiration of the time periods herein prescribed, a track assignment may be changed by the court on its own motion or motion of a party only if the fundamental cause or causes of action have changed or if the case type or track was erroneously identified on a party's Case Information Statement or erroneously entered into the automated docket. A track assignment shall not, however, be changed, during or after the time periods herein prescribed, either because of the alleged complexity of the case or on a representation by a party that additional discovery is required. In such event, relief may be sought pursuant to R. 4:24-1.

4:5A-1. Tracks Defined

Every civil action filed in the Superior Court, except civil commitment actions brought pursuant to R. 4:74-7 and actions in probate, foreclosure and all other general equity actions, shall be assigned by case type as prescribed by the Case Information Statement in Appendix XII to these Rules to one of the four tracks as therein specified, namely, Track I, Track II, Track III, and Track IV. The court shall make the assignment at the time the complaint and Case Information Statement are filed. All summary actions commenced by order to show cause shall be assigned to Track I.

4:5-8. Pleading Special Matters

(a) Fraud; Mistake; Condition of Mind. In all allegations of misrepresentation, fraud,mistake, breach of trust, willful default or undue influence, particulars of the wrong, with dates and items if necessary, shall be stated insofar as practicable. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.

(b) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to allege generally that all such conditions have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, but when so made the party pleading the performance or occurrence has the burden of establishing it.

(c) Pleading According to Legal Effect. Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove; thus, an act or promise of a principal other than a corporation, if in fact proceeding from an agent known to the pleader, should be so stated. In pleading an official document or official act it is sufficient to allege that the document was issued or the act done in compliance with law.

(d) Judgment. A judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or administrative agency or officer, may be alleged without stating matter showing jurisdiction to render it.

(e) Time and Place. For the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered like all other allegations of material matter.

(f) Special Damage. Items of special damage claimed shall be specially stated, except that if a general demand for unliquidated damages is made pursuant to R. 4:5-2, the facts giving rise to any included claim for special damages shall be specially stated in lieu of the monetary claim therefor.

4:5-7. Pleadings to Be Concise and Direct; Construction

Each allegation of a pleading shall be simple, concise and direct, and no technical forms of pleading are required. All pleadings shall be liberally construed in the interest of justice.

4:5-6. Consistency

A party may set forth 2 or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. As many separate claims or defenses as the party has may be stated regardless of their consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in R. 1:4-8.

4:5-5. Effect of Failure to Deny

Allegations in a pleading which sets forth a claim for relief, other than those as to the amount of damages, are admitted if not denied in the answer thereto. In every action brought upon a negotiable instrument, the authenticity of any signature or endorsement thereon shall be taken to be admitted unless the same is put in issue by the pleadings. Allegations in any answer setting forth an affirmative defense shall be taken as denied if not avoided in a reply; issue shall be deemed to have been joined upon allegations in an answer setting forth other matters. Allegations in a reply shall be taken as denied or avoided, and any defense thereto in law or fact may be asserted at trial.

4:5-4. Affirmative Defenses; Misdesignation of Defense and Counterclaim

A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense such as accord and satisfaction, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, resjudicata, statute of frauds, statute of limitations, and waiver. If a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if the interest of justice requires, shall treat the pleading as if there had been a proper designation.

4:5-3. Answer; Defenses; Form of Denials

An answer shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the allegations upon which the adversary relies. A pleader who is without knowledge or information sufficient to form a belief as to the truth of an allegation shall so state and, except as otherwise provided by R. 4:64-1(d) (foreclosure actions), this shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs.

4:5-2. Claim for Relief

Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim, shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement. Relief in the alternative or of several different types may be demanded. If unliquidated money damages are claimed in any court, other than the Special Civil Part, the pleading shall demand damages generally without specifying the amount. If a pleading filed in the Special Civil Part states a demand in excess of the amount cognizable in that court, said pleading shall be filed by the clerk for the full cognizable amount and any amount in excess thereof shall be deemed waived unless the action is transferred pursuant to R. 6:4-1. The clerk of the Special Civil Part shall, in any pleading filed that does not set forth a cognizable amount, consider the demand to be for the maximum amount and the maximum filing fee shall be charged. Upon service of a written request by another party, the party filing the pleading shall within 5 days after service thereof furnish the requesting party with a written statement of the amount of damages claimed, which statement shall not be filed except on court order.

4:5-1. General Requirements for Pleadings

(a) Pleadings Allowed. There shall be a complaint and an answer; an answer to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint pursuant to R. 4:8; a third-party answer, if a third-party complaint is served; and a reply, if an affirmative defense is set forth in an answer and the pleader wishes to allege any matter constituting an avoidance of the defense. No other pleading is allowed.

(b) Requirements for First Pleadings.

(1) Case Information Statement. A Case Information Statement in the form prescribed by Appendix XII-B(1) (Civil Actions General) or Appendix XII-B(2) (Foreclosure Actions) shall be annexed as a cover sheet to each party’s first pleading in all civil actions except civil commitment actions brought pursuant to Rule 4:74-7, probate actions, and all non-foreclosure general equity actions.

(2) Notice of Other Actions and Potentially Liable Persons. Each party shall include with the first pleading a certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and, if so, the certification shall identify such actions and all parties thereto. Further, each party shall disclose in the certification the names of any non-party who should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts. Each party shall have a continuing obligation during the course of the litigation to file and serve on all other parties and with the court an amended certification if there is a change in the facts stated in the original certification. The court may require notice of the action to be given to any non-party whose name is disclosed in accordance with this rule or may compel joinder pursuant to R. 4:29-1(b). If a party fails to comply with its obligations under this rule, the court may impose an appropriate sanction including dismissal of a successive action against a party whose existence was not disclosed or the imposition on the noncomplying party of litigation expenses that could have been avoided by compliance with this rule. A successive action shall not, however, be dismissed for failure of compliance with this rule unless the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action.

(c) Designation of Trial Counsel. Designation of trial counsel may be made in the party's first pleading. If trial counsel is not designated in the pleading, designation shall be made as required in R. 4:25-4.

4:4-8. Amendment

The person serving the process may file an additional or amended proof of service within the time provided by R. 4:4-7. The court may thereafter allow any process or proof of service thereof to be amended upon such terms as it deems appropriate unless such amendment would materially prejudice the rights of the party against whom process issued.

4:4-7. Return

The person serving the process shall make proof of service thereof on the original process and on the copy. Proof of service shall be promptly filed with the court within the time during which the person served must respond thereto either by the person making service or by the party on whose behalf service is made. The proof of service, which shall be in a form prescribed by the Administrative Director of the Courts, shall state the name of the person served and the place, mode and date of service, and a copy thereof shall be forthwith furnished plaintiff's attorney by the person serving process. If service is made upon a member of the household pursuant to R. 4:4-4 that person's name shall be stated in the proof or, if such name cannot be ascertained, the proof shall contain a description of the person upon whom service was made. If service is made by a person other than a sheriff or a court appointee, proof of service shall be by similar affidavit which shall include the facts of the affiant's diligent inquiry regarding defendant's place of abode, business or employment. If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant's diligent inquiry to determine defendant's place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and simultaneously by regular mail, the return receipt card or the unclaimed registered or certified mail shall be filed as part of the proof. Failure to make proof of service does not affect the validity of service.

4:4-6. General Appearance; Acknowledgment of Service

A general appearance or an acceptance of the service of a summons, signed by the defendant's attorney or signed and acknowledged by the defendant (other than an infant or mentally incapacitated person), shall have the same effect as if the defendant had been properly served.

4:4-5. Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction

Whenever, in actions affecting specific property, or any interest therein, or any res within the jurisdiction of the court, or in matrimonial actions over which the court has jurisdiction, wherein it shall appear by affidavit of the plaintiff's attorney or other person having knowledge of the facts, that a defendant cannot, after diligent inquiry as required by this rule, be served within the State, service may, consistent with due process of law, be made by any of the following four methods:

(a) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A) and (B); or

(b) service by mail as prescribed by R. 4:4-4(b)(1)(C); or

(c) by publication of a notice to absent defendants once in a newspaper published or of general circulation in the county in which the venue is laid; and also by mailing, within 7 days after publication, a copy of the notice as herein provided and the complaint to the defendant, prepaid, to the defendant's residence or the place where the defendant usually receives mail, unless it shall appear by affidavit that such residence or place is unknown, and cannot be ascertained after inquiry as herein provided or unless the defendants are proceeded against as unknown owners or claimants pursuant to R. 4:26-5(c). If defendants are proceeded against pursuant to R. 4:26-5(c), a copy of the notice shall be posted upon the lands affected by the action within 7 days after publication. The notice of publication to absent defendants required by this rule shall be in the form of a summons, without a caption. The top of the notice shall include the docket number of the action, the court, and county of venue. The notice shall state briefly:

(1) The notice required by this rule shall be in the form of a summons, without a caption, and shall state briefly (1) the object of the action and the name of the person to whom it is addressed and why such person is made a defendant; and (2) where the action concerns real estate, the municipality in which and the street on which the real estate is situate, and, if theproperty is improved, the street number of the same, if any, and if a mortgage is to be foreclosed, the parties thereto and the date thereof;

(2) The inquiry required by this rule shall be made by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant's residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice; or

(d) as may be provided by court order.

The inquiry required by this rule shall be made by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant's residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.

4:4-4. Summons; Personal Service; In Personam Jurisdiction

4:4-4. Summons; Personal Service; In Personam Jurisdiction

Service of summons, writs and complaints shall be made as follows:

(a) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows:

(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf;

(2) Upon a minor under the age of 14, by delivering a copy of the summons and complaint personally to a parent or the guardian of the minor's person or to a competent adult member of the household with whom the minor resides;

(3) Upon a mentally incapacitated person, by delivering a copy of the summons and complaint personally to the guardian of the person of the mentally incapacitated individual or to a competent adult member of the household with whom the mentally incapacitated person resides, or if the mentally incapacitated person resides in an institution, to the director or chief executive officer thereof;

(4) Upon individual proprietors and real property owners, provided the action arises out of a business in which the individual is engaged within this State or out of any real property or interest in real property in this State owned by the individual, by delivering a copy of the summons and complaint to the individual if competent, or, whether or not the individual proprietor or property owner is competent, to a managing or general agent employed by the individual in such business or for the management of such real property, or if service cannot be made in that manner, then by delivering a copy of the summons and complaint to any employee or agent of the individual within this State acting in the discharge of his or her duties in connection with the business or the management of the real property;

(5) Upon partnerships and unincorporated associations subject to suit under a recognized name, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on an officer or managing agent or, in the case of a partnership, a general partner;

(6) Upon a corporation, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on any officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation, or on a person at the registered office of the corporation in charge thereof, or, if service cannot be made on any of those persons, then on a person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business inthis State, then on any employee of the corporation within this State acting in the discharge of his or her duties, provided, however, that a foreign corporation may be served only as herein prescribed subject to due process of law;

(7) Upon the State of New Jersey, by registered, certified or ordinary mail of a copy of the summons and complaint or by personal delivery of a copy of the summons and complaint to the Attorney General or to the Attorney General's designee named in a writing filed with the Clerk of the Superior Court. No default shall be entered for failure to appear unless personal service has been made under this paragraph. In an action under N.J.S.A. 2A:45-1 et seq. (lien or encumbrance held by the State), the notice in lieu of summons shall be in the form, manner and substance prescribed by N.J.S.A. 2A:45-2, and shall be served, together with a copy of the complaint, on the Attorney General or designee as herein provided, but if the lien or encumbrance arises by reason of a recognizance entered into in connection with any proceeding in the Superior Court or any criminal judgment rendered in such court, the notice, together with a copy of the complaint, shall be served on the county prosecutor or the prosecutor's designee named in a writing filed with the Clerk of the Superior Court;

(8) Upon other public bodies, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on the presiding officer or on the clerk or secretary thereof;

(b) Obtaining In Personam Jurisdiction by Substituted or Constructive Service.

(1) By Mail or Personal Service Outside the State. If it appears by affidavit satisfying the requirements of R. 4:4-5(c)(2) that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule, then, consistent with due process of law, in personam jurisdiction may be obtained over any defendant as follows:

(A) personal service in a state of the United States or the District of Columbia, in the same manner as if service were made within this State or by a public official having authority to serve civil process in the jurisdiction in which the service is made or by a person qualified to practice law in this State or in the jurisdiction in which service is made; or

(B) personal service outside the territorial jurisdiction of the United States, in accordance with any governing international treaty or convention to the extent required thereby, and if none, in the same manner as if service were made within the United States, except that service shall be made by a person specially appointed by the court for that purpose; or

(C) mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to: (1) a competent individual of the age of 14 or over, addressed to the individual's dwelling house or usual place of abode; (2) a minor under the age of 14 or a mentally incapacitated person, addressed to the person or persons on whom service is authorized by paragraphs (a)(2)and (a)(3) of this rule; (3) a corporation, partnership or unincorporated association that is subject to suit under a recognized name, addressed to a registered agent for service, or to its principal place of business, or to its registered office. Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-2.

(2) As Provided by Law. Any defendant may be served as provided by law.

(3) By Court Order. If service can be made by any of the modes provided by this rule, no court order shall be necessary. If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.

(c) Optional Mailed Service. Where personal service is required to be made pursuant to paragraph (a) of this rule, service, in lieu of personal service, may be made by registered, certified or ordinary mail, provided, however, that such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto, and provided further that default shall not be entered against a defendant who fails to answer or appear in response thereto. This prohibition against entry of default shall not apply to mailed service authorized by any other provision of these rules. If defendant does not answer or appear within 60 days following mailed service, service shall be made as is otherwise prescribed by this rule, and the time prescribed by R. 4:4-1 for issuance of the summons shall then begin to run anew.

4:4-4. Summons; Personal Service; In Personam Jurisdiction

Service of summons, writs and complaints shall be made as follows:

(a) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows:

(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf;

(2) Upon a minor under the age of 14, by delivering a copy of the summons and complaint personally to a parent or guardian of the minor's person or to a competent adult member of the household with whom the minor resides;

(3) Upon an incompetent, by delivering a copy of the summons and complaint personally to the guardian of the incompetent's person or to a competent adult member of the household with whom the incompetent resides, or if the incompetent resides in an institution, to the director or chief executive officer thereof;

(4) Upon individual proprietors and real property owners, provided the action arises out of a business in which the individual is engaged within this State or out of any real property or interest in real property in this State owned by the individual, by delivering a copy of the summons and complaint ot the individual id competent, or whether or not the individual proprietor or property owner is competent, to a managing or general agent employed by the individual in such business or for the management of such real property, or if service cannot be made in that manner, then by delivering a cop of the summons and complaint to any employee or agent of the individual within this State acting in the discharge of his or her duties in connection with the business or the management of the real property;


(5) Upon partnerships and unincorporated associations subject to suit under a recognized name, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on an officer or managing agent or, in the case of a partnership, a general partner;


4:4-3. By Whom Served; Copies

(a) Generally. Summonses and writs shall be served together with a copy of the complaint, by the sheriff or by a person specially appointed by the court for that purpose or by a person otherwise authorized by these rules. The plaintiff shall furnish the person making service with the summons and as many copies thereof, each with a copy of the complaint annexed, as there are persons to be served, and in Superior Court actions, with one additionally copy of the summons. Wherever service by mail is permitted by these rules, such mailing may be made b the attorney or a party appearing pro se. Return of service shall be made as providing by R. 4:4-7.

(b) Failure of Sheriff's Service. If the sheriff has returned the summons and complaint to plaintiff or plaintiff's attorney unserved or if 40 days have elapsed after transmittal, by mailing or hand delivery, of the summons and complaint to the sheriff without plaintiff or plaintiff's attorney having received a sheriff's return of service, service may be made within this State (1) personally, by plaintiff's attorney or the attorney's agent or any other competent adult not having a direct interest in the litigation, or (2) by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant or a person authorized by rule or law to accept service for the defendant or, with postal instructions to deliver to addressee only to defendant's place of business or employment. If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to the defendant's usual place of abode. The party making service may, at the party's option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service. Return of service shall be made as provided by R. 4:4-7. Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-2.

4:4-2. Summons: Form

Except as otherwise provided by R. 5:4-1(b) (summary proceedings in family actions), the face of the summons shall be in the form prescribed by Appendix XII-A to these Rules. It shall be in the name of the State, signed in the name of the Superior Court Clerk and directed to the defendant. It shall contain the name of the court and the plaintiff and the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address and the time within which these rules require the defendant to serve an answer upon the plaintiff of plaintiff's attorney, and shall notify the defendant that if he or she fails to answer, judgment by default may be rendered for the relief demanded in the complaint. It shall also inform the defendant of the necessity to file an answer and proof of service thereof with the deputy clerk of the Superior Court in the county of venue, except in mortgage and tax foreclosure actions an answer shall be filed with the Clerk of the Superior Court in Trenton unless and until the action is deemed contested and the papers have been sent by the Clerk to the county of venue in which event an answer shall be filed with the deputy clerk of the Superior Court in the county of venue. If the defendant is an individual resident in this state, the summons shall advise that if he or she is unable to obtain an attorney, he or she may communicate with the Lawyer Referral Service of the county of his or her residence, or the county in which the action is pending, or, if there is none in either county, the Lawyer Referral Service of an adjacent county. The summons shall also advise defendant that if he or she cannot afford an attorney, he or she may communicate with the Legal Services Office of the county of his or her residence or the county in which the action is pending. If the defendant is an individual not resident in this State, the summons shall similarly advise him or her, directing the defendant, however, to the appropriate agency in the county in which the action is appropriate agency in the county in which the action is pending. The reverse side or second page of the summons shall contain a current listing, by county, of telephone numbers of Legal Services Office and the Lawyer Referral Office serving each county, which list shall be updated regularly by the Administrative Office of the Courts and made available to legal forms publishers and to any person requesting such list.

Sunday, March 8, 2009

Report of the New Jersey Supreme Court Committee on Complementary Dispute Resolution

Report of the New Jersey Supreme Court Committee on Complementary Dispute Resolution

January 15, 2009


TABLE OF CONTENTS

I. ........................................................1
PROPOSED RULE AMENDMENTS RECOMMENDED
A. .........................................................................1
Proposed Amendment to Rule 1:5-6 --- Filing
B. ......................................4
Proposed Amendment to Rule 1:40-4 ---Mediation – General Rules
C.
...........................................................................................................6
Proposed Amendment to Rule 1:40-6 --- Mediation of Civil, Probate, and
General Equity Matters
D.
.......................................................................................................8
Proposed Amendment to R. 1:40-12(b)(2) -- Mediators and Arbitrators in
Court-Annexed Programs
E. ............................13
Proposed Amendments to R. 1:40-4, R. 1:40-5; R. 1:40-12 and R. 5:5-6
F.
.......................................24
Proposed Amendment to Appendix XIX – Mediation of Economic Aspects
of Family Actions - Family Mediation Case Information Statement
G.
............................................................27
Proposed Amendment to Appendix XXVI – Guidelines for the Compensation
of Mediators Serving in the Civil Mediation Program
II. ..............................33
PROPOSED RULE AMENDMENTS CONSIDERED AND REJECTED
A. ...................................33
Rejected Amendments to Rule 1:40-12(a) – Mediator Qualifications
III. ...........................................................................................35
OTHER RECOMMENDATIONS
A. .........................................................35
Municipal Court Presumptive Mediation Pilot Program
IV. ......................................................................................................................36
LEGISLATION
V. ..........................................................................37
MATTERS HELD FOR CONSIDERATION
A. .........................................................37
Evaluation of the Last Cycle’s Rule Changes (Family)
B. ...............................................................38
Mediation Where a Final Restraining Order Exists
C. ..............................................................................................................39
Survey Instruments:
D. ............................................................................................................40
Mediator Evaluations:
E. ...............................................................................................41
Mediator Litigation Reporting:
F.
....................................................................................................42
Case Settlement Procedures in Special Civil Part Summary Dispossess
and Small Claims Matters:
VI. .............................................................................................43
MISCELLANEOUS MATTERS
A. ....................................43
Statewide Expansion of the Presumptive Mediation Program (Civil)
B. .....................................................................44
Impact of Two Free Hours of Mediator Service
C. .........................................................................................45
Signing of Mediation Agreements
D. .....................46
Advisory Committee on Mediator Standards – Complaints Against Mediators
E. ..........................................................................................48
Mediator Education and Training
VII. Appendix – Pilot Study: Municipal Presumptive Mediation Report

-i-
I. PROPOSED RULE AMENDMENTS RECOMMENDED
A. Proposed Amendment to Rule 1:5-6 --- Filing

Rule 1:5-6(c) lists the documents which must accompany the initial pleading or the
pleading will not be filed. As part of the Rule amendments that went into effect September 1,
2006, the Supreme Court adopted a new paragraph in Rule 5:4-2 (“Complaint”) that requires the
first pleading of each party in a divorce action to include an affidavit or certification “that the
litigant has been informed of the availability of complementary dispute resolution (‘CDR’)
alternatives to conventional litigation, including but not limited to mediation or arbitration, and
that the litigant has received descriptive literature regarding such CDR alternatives (hereinafter
referred to as CDR Affidavit or Certification).” The Family Programs Subcommittee
recommended that the CDR Affidavit/Certification be listed in Rule 1:5-6 and that such Rule
should be amended to require rejection of the initial pleading if it does not include the required
Affidavit/Certification. The Committee endorsed this recommendation.
The proposed amendments to R. 1:5-6 follow:
-1-
1:5-6. Filing

(a) …no change.
(b) …no change.
(c) Nonconforming Papers. The clerk shall file all papers presented for filing and may notify
the person filing if such papers do not conform to these rules, except that
(1) the paper shall be returned stamped "Received but not Filed (date)" if it is presented for
filing unaccompanied by any of the following:
(A) the required filing fee; or
(B) a completed Case Information Statement as required by R. 4:5-1 in the form set
forth in Appendix XII to these rules; or
(C) in Family Part actions, the affidavit of insurance coverage required by R. 5:4-2(f),
the Parents Education Program registration fee required by N.J.S.A. 2A:34-12.2, the Confidential
Litigant Information Sheet as required by R. 5:4-2(g) in the form prescribed in Appendix XXIV,
or the Affidavit or Certification of Notification of Complementary Dispute Resolution
Alternatives as required by. R. 5:4-2; or
(D) the signature of an attorney permitted to practice law in this State pursuant to
R. 1:21-1 or the signature of a party appearing pro se, provided, however, that a pro se
appearance is provided for by these rules; or
(E) a certification of title search as required by R. 4:64-1(a).
If a paper is returned under this rule, it shall be accompanied by a notice advising that if
the paper is retransmitted together with the required signature, document or fee, as appropriate,
within ten days after the date of the clerk's notice, filing will be deemed to have been made on
the stamped receipt date.
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(2) if an answer is presented by a defendant against whom default has been entered other
than in a mortgage or tax foreclosure action, the clerk shall return the same stamped "Received
but not Filed (date)" with notice that the defendant may move to vacate the default.
(3) a demand for trial de novo may be rejected and returned if not filed within the time
prescribed in R. 4:21A-6 or if it is submitted for filing by a party in default or whose answer has
been suppressed.
(4) a paper shall be returned stamped "Received but not Filed (date)" if it does not conform
to the requirements of R. 1:4-9 with notice that if the document is retransmitted on conforming
paper within 10 days after the date of the clerk's notice, filing will be deemed to have been made
on the stamped receipt date.
(d) …no change.
(e) …no change.

B. Proposed Amendment to Rule 1:40-4 ---Mediation – General Rules

The Committee reviewed several complaints from mediators concerning failure of parties
to timely pay the mediator’s fees. Mediators in the Civil Mediation Program serve free for two
hours in every case. The hours shall be equally split between preparation and administrative
time, including holding an organizational telephone conference, and an actual mediation session.
If it takes a mediator in excess of an hour to complete the administrative time, the telephone
conference and preparation and the parties opt not to continue the mediation session beyond the
one remaining free hour, the mediator will not get paid for any excess preparation and
administrative time.
The Committee reviewed data collected by the AOC’S Civil Practice Division from
4,651 post mediation exit questionnaires submitted by mediators. The information reveals that
the mediators reporting spent an average of 2.38 hours of preparation time. Thus, the mediators
reporting actually gave 3.38 free hours of time per case.
The Committee has also reviewed complaints that mediators spend additional
uncompensated time trying to collect on fees earned after the parties agree to continue on a
paying basis.
At its December 12, 2007 meeting, the Conference of Civil Presiding Judges agreed that
civil judges should be reminded to consider imposing consequences other than simply ordering
payment in the amount of the unpaid mediator’s bill. The Committee recommends that specific
language be added to R. 1:40-4(b) to make clear that failure to pay the mediator may result in an
Order by the court to pay the fees and costs of the mediator, including any additional costs and
fees incurred due to the non-payment.
The proposed amendments to R. 1:40-4 follow:
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1:40-4 Mediation – General Rules

(a) …no change.
(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 two
hours of service, which shall be allocated equally between 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 the fees and
costs of the mediator including any additional costs and fees incurred due to the non-payment
and imposing appropriate sanctions.
(c) …no change.
(d) …no change.
(e) …no change.
(f) …no change.
(g) …no change.
(h) …no change.




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C. Proposed Amendment to Rule 1:40-6 --- Mediation of Civil, Probate, and General
Equity Matters

Experience in the Civil Mediation Program has shown that mediators need discretion to
either require the parties to exchange pre-mediation statements under R. 1:40-6(e) or to require
that the statements not be exchanged but rather submitted confidentially by each side to the
mediator. At times in especially contentious cases, the mediator may wish to avoid further
polarizing the parties by requiring that each party submit the statements.
The proposed amendments to R. 1:40-6 follow:
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1:40-6 Mediation of Civil, Probate, and General Equity Matters

The CDR program of each vicinage shall include mediation of civil, probate, and general
equity matters, pursuant to rules and guidelines approved by the Supreme Court.
(a) …no change.
(b) …no change.
(c) …no change.
(d) …no change.
(e) Mediation Statement. The mediator shall fix a date following the telephonic conference
for the exchange by the parties and service upon the mediator of a brief statement of facts and
proposals for settlement not exceeding ten pages. At the discretion of the mediator, the
statement of facts from each party may be prepared for the confidential review by the mediator
only. All documents prepared for mediation shall be confidential and subject to Rule 1:40-4(c)
and (d).
(f) …no change.
(g) …no change.


D. Proposed Amendment to R. 1:40-12(b)(2) -- Mediators and Arbitrators in Court-
Annexed Programs

When the mandatory mediation training requirements of R. 1:40-12(b)(2) became
effective in July 1992, the Committee included a provision to “grandfather” those who had been
conducting facilitative mediation prior to the effective date of the rule. This provision is now
moot and its continued existence has created a great deal of confusion. As a result, several
untrained individuals who were doing other types of settlement techniques but not facilitative
mediation as defined in R. 1:40-2 before July 1992, have attempted to obtain waivers of the
training citing this provision. This provision creates needless work and has no sustaining
purpose and needs to be deleted from the rules.
The proposed amendments to R. 1:40-12 follow:

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1:40-12 Mediators and Arbitrators in Court-Annexed Programs

(a) Mediator Qualifications
(1) …no change.
(2) …no change.
(3) …no change.
(4) …no change.
(b) Mediator Training Requirements
(1) General Provisions. [Unless waived pursuant to subparagraph (2), a] All persons
serving as mediators shall have completed the basic dispute resolution training course as
prescribed by these rules and approved by the Administrative Office of the Courts. Volunteer
mediators in the Special Civil Part and Municipal Court mediators shall have completed 18
classroom hours of basic mediation skills complying with the requirements of subparagraph
[(4)](3) of this rule. Mediators on the civil, general equity, and probate roster of the Superior
Court shall have completed 18 classroom hours of basic mediation skills complying with the
requirements of subparagraph [(4)](3) of this rule and at least five hours being mentored by an
experienced mediator on the roster in accordance with guidelines promulgated by the
Administrative Office of the Courts in at least two cases in the Superior Court. Individuals may
obtain a waiver of the mentoring requirement from the Administrative Office of the Courts on
the successful demonstration that they have previously served as a mediator in at least five cases
under R. 1:40-4 or comparable mediation program or have satisfactorily completed at least 10
hours in an approved advanced mediation course. Family Part mediators shall have completed a
40-hour training program complying with the requirements of subparagraph [(5)](4) of this rule;
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and judicial law clerks shall have successfully completed 12 classroom hours of basic mediation
skills complying with the requirements of subparagraph [(6)](5) of this rule.
[(2) Consideration of Prior Training. The Administrative Office of the Courts or the
Assignment Judge, as appropriate, may waive these basic training requirements for mediators
already serving prior to the effective date of this rule upon a determination that the mediator is
qualified to continue to serve by reason of background, training, relevant educational and
professional experience, and any other relevant factor.]
[(3)] (2) Continuing Training. Commencing in the year following the completion of
the basic training course or the waiver thereof, all mediators shall annually attend four hours of
continuing education and shall file with the Administrative Office of the Courts or the
Assignment Judge, as appropriate, an annual certification of compliance. To meet the
requirement, this continuing education should cover at least one of the following: (A) reinforcing
and enhancing mediation and negotiation concepts and skills, (B) ethical issues associated with
mediation practice, or (C) other professional matters related to mediation. Mediators who have
been approved to serve as mentors under subsection (b)(1) of this Rule may apply the time spent
mentoring to satisfy this requirement.
[(4)] (3) Mediation Course Content -- Basic Skills. The 18-hour classroom course
in basic mediation skills shall, by lectures, demonstrations, exercises and role plays, teach the
skills necessary for mediation practice, including but not limited to conflict management,
communication and negotiation skills, the mediation process, and addressing problems
encountered in mediation.
[(5)] (4) Mediation Course Content -- Family Part Actions. The 40-hour classroom
course for family action mediators shall include basic mediation skills as well as at least 22 hours
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of specialized family mediation training, which should cover family and child development,
family law, divorce procedures, family finances, and community resources. In special
circumstances and at the request of the Assignment Judge, the Administrative Office of the
Courts may temporarily approve for a one-year period an applicant who has not yet completed
the specialized family mediation training, provided the applicant has at least three years of
experience as a mediator or a combination of mediation experience and service in the Family
Part, has co-mediated in a CDR program with an experienced family mediator, and certifies to
the intention to complete the specialized training within one year following the temporary
approval.
[(6)] (5) Training Requirements for Judicial Law Clerks. Judicial law clerks
serving as mediators shall first have completed either a 12-hour training course prescribed by the
Administrative Office of the Courts, an approved course conducted by another institution or
agency, or other comparable training. Proof of completion of any training other than the
prescribed 12-hour course shall be submitted to the Administrative Office of the Courts for a
determination of suitability. The Administrative Office of the Courts shall work with other
institutions and agencies to encourage their provision of judicial law clerk mediation training and
shall either approve or evaluate that training.
[(7)] (6) Co-mediation; mentoring; training evaluation. In order to reinforce
mediator training, the vicinage CDR coordinator shall, insofar as practical and for a reasonable
period following initial training, assign any new mediator who is either an employee or a
volunteer to co-mediate with an experienced mediator and shall assign an experienced mediator
to mentor a new mediator. Using evaluation forms prescribed by the Administrative Office of the
Courts, the vicinage CDR coordinator shall also evaluate the training needs of each new
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mediator during the first year of the mediator's qualifications and shall periodically assess the
training needs of all mediators.
(c) …no change.
(d) …no change.

E. Proposed Amendments to R. 1:40-4, R. 1:40-5; R. 1:40-12 and R. 5:5-6

The Committee unanimously voted to incorporate Directive #1-07, Statewide Program
for Mediation of Economic Aspects of Family Actions – Program Guidelines; Form Referral
Order; Mediation Case Information Statement (dated February 6, 2007), into the Rules.
The economic mediation program provides a vehicle for applying complementary dispute
resolution techniques to help resolve economic aspects of dissolution (divorce) actions.
Additionally, non-dissolution cases also may be referred at the discretion of the Family Presiding
Judge. All such cases referred to economic mediation must first be referred to the Matrimonial
Early Settlement Panel (MESP) program. To expedite settlement, parties may voluntarily request
mediation during any phase of their case. No case shall be referred to mediation if there is a
temporary or final restraining order in effect pursuant to the Prevention of Domestic Violence
Act (N.J.S.A. 2C:25-17 et seq.). Unless good cause is shown why a particular matter should not
be referred to the Economic Mediation Program, litigants will be ordered to attend this program
or another post-MESP Complementary Dispute Resolution event.
The Committee unanimously endorsed the recommendation to revise the credentials for
economic mediators. Directive #1-07 indicated that non-attorney applicants who are “otherwise
qualified” must have an advanced degree in “psychology, psychiatry, social work or an allied
mental health field, business, finance, or accounting, or a CPA.” Once the Directive is
incorporated into R. 1:40-12, the recommendation is to replace “allied mental health field” with
“other advanced degree deemed appropriate by the credentials committee.” This shall give the
credentialing committee more flexibility when reviewing candidates they deem as otherwise
qualified to serve as economic mediators.
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The proposed amendments that incorporate Directive #1-07 into the Rules are contained
in R. 1:40-4, R.1:40-5; R. 1:40-12 and R. 5:5-6 and are as follows:
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1:40-4. Mediation--General Rules

(a) …no change.
(b) …no change.
(c) …no change.
(d) …no change.
(e) …no change.
(f) Mediator Disclosure of Conflict of Interest.
(1) Before accepting a mediation, a person who is requested to serve as a mediator
shall:
(A) make an inquiry that is reasonable under the circumstances to determine whether
there are any known facts that a reasonable person would consider likely to affect the
impartiality of the mediator, including a financial or personal interest in the outcome of the
mediation or an existing or past relationship with a mediation party or foreseeable participant in
the mediation; and
(B) disclose any such known fact to the mediation parties as soon as is practicable
before accepting a mediation.
(2) If a mediator learns any fact described in subparagraph (f)(1)(A) after accepting a
mediation, the mediator shall disclose it as soon as is practicable.
(3) In a mediation of the economic aspects of a family matter, after entry of the Order
of Referral, if the court is advised by the mediator, counsel, or one of the parties that a conflict of
interest exists, the court will reassign the case to a different mediator. In such situations, the
parties will be provided the opportunity to select a replacement mediator from the roster or the
court may appoint one to the case. An Amended Order of Referral will be prepared and provided
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All data should be entered in FACTS.
(g) …no change.
(h) …no change.
(i) …no change.
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1:40-5. Mediation in Family Part Matters

(a) …no change.
(b) Mediation of Economic Aspects of Divorce.
(i) Referral to MESP. The CDR program of each vicinage shall include a post-
Matrimonial Early Settlement Panel (MESP) program for the mediation of the economic aspects
of divorce or for the conduct of a post-MESP alternate Complementary Dispute Resolution
(CDR) event consistent with R. 5:5-6 and R. 1:40-5 [Appendix XIX of these Rules]. However,
no matter shall be referred to mediation if a temporary or final restraining order is in effect in the
matter pur-suant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.).
(ii) Designation of Mediator of Economic Aspects of Family Law Matters. A
credentials committee comprised of representatives from the Supreme Court Committee on
Complementary Dispute Resolution will be responsible for reviewing and approving all mediator
applications. Ap-plicants must complete an application form posted on the Judiciary’s Internet
website (www.judiciary.state.nj.us or www.njcourtsonline.com ). Mediators who meet the
training re-quirements set forth in this Rule, and any other approved criteria developed by the
Family Court Programs Subcommittee on the Committee on Complementary Dispute Resolution
will be added to the Roster of Approved Mediators. The roster will be maintained by the
Administrative Office of the Courts and is accessible on the Judiciary’s Internet web site.
(iii) Exchange of Information. In mediation of economic aspects of Family actions,
par-ties are required to provide accurate and complete information to the mediator and to each
other, including but not limited to tax returns, Case Information Statements, and appraisal
reports. The court may, in the Mediation Referral Order, stay discovery and set specific times for
completion of mediation.
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(iv) Timing of Referral. Parties are referred to economic mediation or other alternate
CDR event following the unsuccessful attempt to resolve their issues through MESP. At the
conclu-sion of the MESP process, parties are directed to confer with appropriate court staff to
expedite the referral to economic mediation. The following procedures should be followed:
1. Parties may conference with the judge or the judge’s designee.
2. Court staff will explain the program to the parties and/or their attorneys.
3. Parties will be provided with the roster of approved mediators for selection.
4. Once a mediator has been selected, contact is immediately attempted by phone to
secure acceptance by the mediator and the date of initial appointment. If court staff
cannot con-tact the mediator for confirmation, the order of referral will reflect that the
mediator and the date of initial appointment are tentative until confirmation is
secured. Staff will at-tempt to confirm within 24 hours and send an amended order to
the parties and/or their attorneys.
5. If a mediator notifies the court that he or she cannot take on any additional cases,
court staff will convey that to the parties at the time of selection so that an alternate
mediator can be selected.
6. The Economic Mediation Referral Order shall be prepared reflecting the name of the
mediator, listing the financial documents to be shared between the parties and with
the mediator, indicating the allocation of compensation by each party if mediation
extends past the initial two hours, stating the court’s expectation that the parties will
mediate in good faith, defining the mediation time frame, and the identifying the next
court event and corresponding date of that next court event.
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7. The referral order is to be signed by the judge and provided to the parties before they
leave the court house. Tentative orders are replaced by amended orders with
confirmed appointments and faxed to the parties and/or their attorneys the next day, if
necessary.
8. If the parties are unable to agree upon and select a mediator, the judge will appoint
one. Staff should follow the above procedures as applicable.
9. Referral to economic mediation is recorded in the Family Automated Case Tracking
System (FACTS).
(v) Adjournments. Adjournments specific to the mediation process are handled
between the mediator, the parties, and/or attorneys, so long as the adjournment does not cause
the case to exceed the return date to the court. If an adjournment would cause the case to exceed
the return date to the court, a written request to the court is required. The request should be
forwarded for consid-eration to the judge who has responsibility for the case or the judge’s
designee.
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1:40-12. Mediators and Arbitrators in Court-Annexed Programs

(a) Mediator Qualifications
(1) …no change.
(2) …no change.
(3) …no change.
(4) …no change.
(5) …no change.
(6) Family Part Economic Mediators. Mediators of economic issues in family
disputes must meet one of the following sets of experiential requirements and must also complete
the required training set forth in Section (b) of this Rule:
(i) Experience
(1) Attorneys
a. Juris Doctor (or equivalent law degree)
b. Admission to the bar for at least seven years
c. Licensed to practice law in the state of New Jersey
d. Practice substantially devoted to matrimonial law
(2) Non-Attorneys
a. Advanced degree in psychology, psychiatry, social work, business, finance, or
accounting, or a CPA
or other advanced degree deemed appropriate by the credentials committee,
At least seven years experience in the field of expertise; and
b. Licensed in New Jersey if required in the field of expertise.
(3) Any retired Superior Court judge with experience in handling dissolution matters.
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(b) Mediator Training Requirements.
(1) no change . . .
(2) no change . . .
(3) no change . . .
(4) no change . . ..
(5) Mediation Course Content-Family Part Actions. The 40-hour classroom course for
family action mediators shall include basic mediation skills as well as at least 22 hours of
specialized family mediation training, which should cover family and child development, family
law, divorce procedures, family finances, and community resources. In special circumstances
and at the request of the Assignment Judge, the Administrative Office of the Courts may
temporarily approve for a one-year period an applicant who has not yet completed the
specialized family mediation training, provided the applicant has at least three years of
experience as a mediator or a combination of mediation experience and service in the Family
Part, has co-mediated in a CDR program with an experienced family mediator, and certifies to
the intention to complete the specialized training within one year following the temporary
approval. Economic Mediators in family disputes (1) shall have completed 40 hours of training
in family mediation in accordance with this rule or (2) shall have completed a minimum of 25
hours of mediation training with a commitment to complete the remaining 15 hours of
specialized training within one year following the addition to the roster of mediators in
complying with the requirements of subparagraph (5) of this Rule.
(6) no change…
(7) no change…
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5:5-6 Participation in Mandatory Post-MESP Mediation or in a Mandatory Post-MESP
Complementary Dispute Resolution Event
Each vicinage shall establish a program for the post-Matrimonial Early Settlement
Program ("MESP") mediation of the economic aspects of divorce consistent with the procedures
set forth in [Appendix XIX] these Rules. In any matter in which a settlement is not achieved at
the time of the MESP, an order for mediation or other post-MESP Complementary Dispute
Resolution ("CDR") event shall be entered. The order shall provide that the litigants may select a
mediator from the statewide-approved list of mediators or select an individual to conduct a post-
MESP CDR event. Litigants shall be permitted to select another individual who will conduct a
post-MESP mediation event, provided such selection is made within seven days.
Unless good cause is shown why a particular matter should not be referred to this post-
MESP program, litigants shall be required to participate in the program for no more than two
hours, consisting of one hour of preparation time by the mediator or other individual conducting
the alternate CDR event and one hour of time for the mediation or other CDR event. The litigants
will not be charged a fee for the mandatory first two hours of mediation. Participation after the
first two hours shall be voluntary.
If litigants consent to continue the mediation process, the Order of Referral to Economic
Mediation will determine the distribution of costs for each party for the additional hours. If the
litigants choose to participate in an alternate post-MESP CDR event, the fee shall be set by the
individual conducting the session. The litigants shall share the cost equally unless otherwise
determined by the court. The litigants are required to participate in at least one session of such
alternate post MESP CDR event.


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Official Court Comment:
The New Jersey Supreme Court Committee on Complementary Dispute Resolution
developed the Economic Mediation Pilot Program, which began on a pilot basis in 1999. The
pilot eventually was in place in seven counties: Atlantic, Bergen, Burlington, Morris, Ocean,
Somerset, and Union. After assessing the positive outcomes of the pilot, the Supreme Court in
June 2006 approved the program for statewide implementation. The Court thereafter approved
these Program Guidelines, to be effective immediately, in January 2007.

F. Proposed Amendment to Appendix XIX – Mediation of Economic Aspects of Family
Actions - Family Mediation Case Information Statement

In mediation of economic aspects of Family actions, parties are required to provide
accurate and complete information to the mediator and to each other, including but not limited to
tax returns, Case Information Statements, and appraisal reports
Mediators must promptly complete and submit to the court a Completion of Mediation
form. A copy of the Completion of Mediation form must accompany the referral form given to
the mediator during initial contact, with instructions on how to fill out the Completion of
Mediation form.
The proposed amendments to Appendix XIX follow:
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Appendix XIX

MEDIATION OF ECONOMIC ASPECTS OF FAMILY ACTIONS –
FAMILY MEDIATION CASE INFORMATION STATEMENT

Mediators must promptly complete and submit to the court a Completion of Mediation
form. A copy of the Completion of Mediation form must accompany the referral form given to
the mediator during initial contact, with instructions on how to fill out the Completion of
Mediation form.


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State of New Jersey

MEDIATION CASE INFORMATION FORM

For Mediation of Economic Aspects of Family Law Cases

For Office Use Only

Date Received:

Date Entered:
Directions: This form is to be completed by the mediator when mediation is concluded or the case is returned to
court.

CASE DOCKET NUMBER



CASE NAME NAME OF MEDIATOR
OUTCOME

 mediation held / full agreement on all issues
 mediation held / some issues still pending
 mediation held / no agreement
 no mediation held / parties settled case before mediation session
 no mediation held / party failed to attend


DATE CASE ASSIGNED TO MEDIATOR







DATE OF INITIAL MEDIATION SESSION DATE OF FINAL MEDIATION SESSION

NUMBER OF MEDIATION SESSIONS








NUMBER OF HOURS FOR PREPARATION NUMBER OF MEDIATION HOURS

DID THE ATTORNEYS/PARTIES SUBMIT
PROPER CASE SUMMARIES?

 yes  no


WERE THE ATTORNEYS/PARTIES
PREPARED FOR THE MEDIATION
SESSIONS?

 yes  no

DID THE PARTIES PARTICIPATE IN THE
MEDIATION SESSIONS?

 yes  no
PLEASE RETURN TO: FAMILY DIVISION OR FAX TO:



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G. Proposed Amendment to Appendix XXVI – Guidelines for the Compensation of
Mediators Serving in the Civil Mediation Program

The Committee recommends several revisions to the Guidelines for Compensation of
Mediators Serving in the Civil Mediation Program (Appendix XXVI).
The Civil Subcommittee was asked by the Family Subcommittee to redraft the guidelines
so that they apply also in the Family Economic Mediation Program, where applicable.
The Conference of Civil Presiding Judges has asked, and the Committee agrees that Guideline #2
be amended to specifically require that the mediator announce when the free mediation time will
be over to avoid confusion over the actual start time of the free hour.
There has been considerable confusion over how the mediator’s fee is divided when there
are commonly situated multiple parties having an identity of interest. In this regard, Guideline
#9 is not clear. This may cause undue disagreement by the parties and create unnecessary
friction after a successful mediation. Mediators should use their best judgment as to the
allocation of fees so that those having an identity of interest are allocated a single share of the
bill. If there is any disagreement, it is up to an individual to make application to the court for
reallocation of the fees pursuant to R. 1:40-4(b) to create equity. However, to alleviate some of
the ambiguity, additional clarifying language should be added.
The Committee reviewed complaints about counsel taking a cavalier attitude concerning
their clients’ responsibility to pay mediators as compared to payment of others, such as experts.
Such situations highlight the need for specific language in Guideline #12 to make clear that
although payment of the bill is the responsibility of the client, counsel should proactively
facilitate prompt payment to the mediator.

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At its December 12, 2007 meeting the Conference of Civil Presiding Judges discussed
frequent problems in the operation of the procedure developed by the Conference and
memorialized in Guideline #15. Specifically, the guideline provides that when a mediator’s bill
is not timely paid (the Order of Referral directs the parties to make “prompt payment” upon
receipt of a bill), the mediator should fax a note to the Civil CDR Point Person detailing the non-
payment. Once received, the court has the option to make an effort to resolve the matter
informally or sua sponte schedule an Order to Show Cause (OTSC). The problem that frequently
occurs is that there is no deadline on how long the court (through staff) may allow for informal
settlement of the case before an OTSC is scheduled. It appears that, in several counties, the
delinquent party drags out the process for months, sometimes misrepresenting that payment is in
the mail when it is not. This informal process can result in the mediator expending additional
time and resources simply trying to get paid. Finally, when the OTSC is scheduled, the mediator
will get the payment the day before. When payment is received, the OTSC is cancelled. Or, if
payment is not received and the OTSC hearing is held, the court simply orders payment of the
unpaid bill or enters judgment in the amount of the unpaid bill. There are no provisions made for
interest, sanctions, additional fees for collection efforts, etc. even though the court has the
authority under Guideline #15 to impose consequences for a failure to mediate in accordance
with the Order. Mediators, who have already lost two or more hours of uncompensated time on
the case, deserve the court’s assistance in deterring people from unnecessarily wasting their time.
When staff receive a fax from a mediator reporting such a problem, an Order to Show
Cause should be immediately scheduled. In implementing this, the Committee supports a
uniform approach with the mediator participating telephonically, but with the offending
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-29-
individuals appearing in person. This approach was subsequently approved by the Conference of
Civil Presiding Judges.
The proposed amendments to the Guidelines for the Compensation of Mediators serving
in the Civil Program follow:

APPENDIX XXVI

GUIDELINES FOR THE COMPENSATION OF MEDIATORS SERVING IN THE
CIVIL AND FAMILY ECONOMIC MEDIATION PROGRAMS

These guidelines apply to the compensation that may be charged by all mediators serving
in the Statewide Mediation Program for Civil, General Equity, and Probate cases and also in the
Family Economic Mediation Program where applicable:
1. …no change.
2. Time Spent Before Initial Mediation Session: At the beginning of the initial mediation
session, the mediator shall disclose to the parties the amount of time the mediator has
spent in handling the case thus far and must announce [also] when the [two] free
mediation time [hours] will be [expended] over. If the amount of time spent by the
mediator will exceed two hours and if the mediator intends to charge the parties for that
additional time should they agree to continue with mediation on a paying basis, then the
mediator must advise the parties of this fact prior to commencing the initial mediation
session.
3. …no change.
4. Alternate Mediators: In the Civil Mediation Program if the parties select an alternate
mediator from the approved roster, other than the mediator appointed by the court, that
mediator may charge a negotiated rate fee and need not provide the first two hours of
service free.
5. …no change.
6. …no change.
7. …no change.
8. …no change.
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9. Allocation of Mediation Fees and Expenses: The parties who participate in mediation
beyond the "free hours" component shall share the costs and fees of the mediator: 1)
equally, 2) as determined by the mediator, or 3) as otherwise agreed, subject to an
application to the court for an equitable reallocation of the fees. The mediator shall
waive the share of the fee allocable to an indigent party as defined in R. 1:13-2(a)
10. …no change.
11. …no change.
12. Submission of Mediator's Bills: In the absence of other payment arrangements,
mediators should bill the parties following each mediation session for which payment is
due. Generally, a mediation session should not begin unless the parties are current in
their payments for previous sessions. No retainer fee or advance may be requested by the
mediator at any time. Counsel have a responsibility to facilitate prompt payment of
mediator fees.
13. …no change.
14. …no change.
15. Collection of Unpaid Mediator's Bill/Failure to Mediate in Accordance with Order: If the
court receives a written report (sent to the CDR Point Person in the county of venue or
assigned judge in the Family Part) that a mediator has not been timely paid or that the
mediator and/or a party has incurred unnecessary costs or expenses due to the failure of a
party and/or counsel to participate in the mediation process in accordance with the Order
of Referral to Mediation, the court [either will make an effort to resolve the matter
and/or] will issue a sua sponte [issue an] Order to Show Cause why the mediator’s bill
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II. PROPOSED RULE AMENDMENTS CONSIDERED AND
REJECTED
A. Rejected Amendments to Rule 1:40-12(a) – Mediator Qualifications

The Committee discussed the possible benefits of setting minimum standards for
mediator expertise in certain Civil case types, such as employment, environmental, and complex
construction. Currently, pursuant to a process developed by the Committee, if an individual
meets the minimum educational requirements and satisfies the training and mentoring
requirements, he or she is appointed to the roster. On the application form, he or she is asked to
select substantive areas of law in which he or she has expertise. This is a subjective
determination and there is no requirement to submit substantiation of that purported expertise.
The Conference of Civil Presiding Judges had endorsed the concept of setting minimum
standards, although they did not discuss issues regarding how to determine expertise or what
types of cases would necessitate such expertise.
This discussion brought the Committee back to the ongoing debate as to whether an
individual who has honed effective mediation skills can resolve any type of dispute regardless of
his or her substantive expertise. Prior discussions on this debate have indicated that the
Committee is generally of the view that possessing effective mediation skills was the primary
driver for being a successful mediator, and that expertise in a certain area is a secondary
component.
As the discussion continued, the Committee agreed that in some types of cases (as in
Lemon Law cases) substantiation should be required for the mediators. Currently, in order to
mediate Lemon Law cases, an individual must complete a 4-hour course in substantive Lemon
Law and related areas or certify that he or she has handled at least 15 lemon Law cases in the
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past five years. Nevertheless, Rule 1:40-6(b) renders further amendment to Rule 1:40-12(a)
unnecessary. Rule 1:40-6(b) states that “The parties may, however, within 14 days after entry of
the mediation referral order, stipulate in writing to the designation of a different mediator.”
Consequently, pursuant to Rule1:40-6(b), if the experience and expertise of the assigned
mediator does not meet the parties’ expectations, they may agree to substitute a different
mediator.
The Committee decided unanimously to leave the Rule as it currently stands.

III. OTHER RECOMMENDATIONS
A. Municipal Court Presumptive Mediation Pilot Program

In 2005, the Supreme Court approved an eighteen month presumptive mediation pilot
program for municipal courts. The program was developed by the Municipal Court Programs
Subcommittee and initiated in 2006. It was conducted in seven municipalities: Fairlawn
Borough (Bergen County); Fort Lee Borough (Bergen County); Galloway Township (Atlantic
County); Hoboken City (Hudson County); Lawrence Township (Mercer County); North
Wildwood City (Cape May County); and, West Deptford (Gloucester County). The program
was completed in 2007. Data was collected and evaluated to assess the attitude of parties
involved in the mediation process, the mediators, municipal court judges and municipal court
staff. The evaluation suggested that parties involved in mediation felt positive about the process.
Similarly, mediators and court staff indicated that the process was effective.
That said, the report on the pilot project describes some concerns with the
implementation of the pilot program (See Appendix I – Pilot Study: Presumptive Mediation
Report). Sample sizes were small, due to a lack of full participation by some of the
municipalities. There were also some issues with the compilation of the data by the studies
coordinator. In reviewing the report, the Committee recommended that the pilot program be
expanded and extended to additional courts throughout the state for further study. In order to
improve the rate of participation, the Committee suggested that the outcome of the pilot be
brought before the Conference of Municipal Presiding Judges and that each Judge be asked to
recommend two or three municipalities in their vicinage to participate. The Presiding Judges
will be able to select municipalities based on their knowledge of the individual courts, and we
can therefore anticipate a higher rate of participation.
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IV. LEGISLATION

The Committee has made no recommendations regarding legislation.

-36-
V. MATTERS HELD FOR CONSIDERATION
A. Evaluation of the Last Cycle’s Rule Changes (Family)

The Committee has decided it would be prudent to examine the effectiveness of the
recently amended Rules concerning mediation in the Family Division. The Committee has and
will continue to review statistics in this effort. Additionally, the Committee will be seeking input
from the Bench, Bar and mediation community.
-37-
B. Mediation Where a Final Restraining Order Exists

The Family Programs Subcommittee has been discussing the issue of mediation, in any
form, where a final restraining order (“FRO”) (not a temporary restraining order) exists. Some
members of the Committee believe that individuals in relationships wherein domestic violence
exists would benefit from mediation. The Conference of Family Presiding Judges designated
Judge Dilts and Judge Millard to attend a Committee meeting to inform the Committee. The
Judges attended the May, 2008 Committee meeting and provided the history and rationale behind
New Jersey’s prohibition against mediation where an FRO exists. The prohibition’s rationale
notwithstanding, Judge Dilts offered several comments for consideration if the Committee
chooses to continue to explore mediation where an FRO exists. The Committee has decided to
continue to explore the issue while acknowledging its complexity.

-38-
C. Survey Instruments:

Members of the Committee have expressed concerns regarding the lack of standardized
surveys to gather and report back on both outcomes (the forms submitted by staff for statistical
purposes) and evaluations (the forms submitted by the mediation participants) for the various
CDR programs.
During the Rules cycle 2009-2011, the Administration and Family Subcommittees, in
partnership with the Advisory Committee, will work to review the mediation statistical reporting
and evaluation forms. The ideal outcome will enable us to not only report on vicinage and
statewide statistics and evaluations, but also allow us to look across the various programs to
compare program effectiveness (including mediator training) and possibly allow for a
cost/benefit analysis of some of the programs.

-39-
D. Mediator Evaluations:

A concern has been raised that there is no process in place to evaluate mediators. While
we now have a complaint process in place, it is used only minimally, and the assumption is that
most people do not wish to take the time to go through the formal process, or they do not wish to
take their concerns to that level of formal complaint. The Civil Division does get evaluations
that indicate that there are problems, but often the complaints are anonymous and do not identify
the mediator. In the event that a mediator is named, AOC court staff do reach out to the
mediator, but there is no process in place to determine if the problem was remedied. The
committee is doing exploratory research on an observation program that was recently put in
place in Washington D.C. This program utilizes selected staff and volunteers to sit in and
observe every mediator. There are obviously issues that need to be worked out, and the
Committee will work toward a recommended pilot.

-40-
E. Mediator Litigation Reporting:

In response to the filing of a criminal complaint against a mediator on the statewide
Mediation Roster, the Advisory Committee is considering whether it is necessary to require
mediators to report any litigation they may become personally involved in while they are
recognized as court appointed mediators. The issue is whether criminal charges or civil litigation
relate to the mediator’s suitability to serve as a mediator. The Advisory Committee expects to
review and consider information collected from the National Center for State Courts describing
the various requirements for mediators to report their personal litigation status and make a
recommendation to the Supreme Court Committee on CDR during the 2009-2011 Rules cycle.


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F. Case Settlement Procedures in Special Civil Part Summary Dispossess and Small
Claims Matters:

Several members of the Committee have raised concerns regarding CDR practices in the
Special Civil Part, especially in the summary dispossess and small claims divisions. Both of the
latter involve a very high volume of cases and a disproportionate number of lower-income and
unrepresented defendants. The Committee Chair noted that these proceedings represent the "face
of our courts" to much of the community. It is critically important that the CDR procedures used
to resolve many of them yield fair, equitable and just results.
Although often denominated "mediation," CDR in tenancy and small claims matters
generally takes the form of case settlement negotiations, facilitated by law clerks and other third-
parties. Assigned or recruited by each vicinage, these "case settlers" are provided with limited
training by the AOC. They are charged with resolving as many cases as possible before trial.
Some Committee members noted that time and volume pressures can result in settlements
requiring displacement or excessive payments despite the existence of compelling, even
jurisdictional, defenses which are ignored or unknown to the participants. Committee members
also reported instances where defendants related feeling coerced by the process into accepting
unreasonable or impossible settlement terms.
In response to the above, the Committee has decided to undertake a comprehensive
review and evaluation of the case settlement procedures employed in Special Civil Part summary
dispossess and small claims matters. Relevant data and information will be compiled and
analyzed, and appropriate revisions to existing procedures will be proposed if and where
necessary. The goal is to insure that this form of CDR results in settlements that are fairly
negotiated, equitable and just.
VI. MISCELLANEOUS MATTERS
A. Statewide Expansion of the Presumptive Mediation Program (Civil)

Effective July 1, 2008, the Presumptive Mediation Pilot Program became a statewide
program with implementation of the program in Atlantic and Cape May counties.

-43-
B. Impact of Two Free Hours of Mediator Service

Effective September 1, 2006, the Court amended R. 1:40-4 to reduce the number of hours
of free mediator service per case from three to two. The Court also directed the Committee to
track the impact. The subcommittee has been unable to determine whether there has been any
cause and effect impact, positive or negative, due to the reduction in the free mediation time
from three hours to two. The subcommittee recommends that the mediation training include tips,
forms and similar techniques developed by practicing mediators that reduce preparation time and
administration of multi-party cases.

-44-
C. Signing of Mediation Agreements

It was brought to the attention of the Committee that in some cases, mediators are asked
to sign the agreements that they have mediated. However, some mediators, based on their
training and their understanding of their roles as mediators, feel that it is improper for them to
sign the agreement. There is concern that a signature on the agreement implies that the mediator
endorses the agreement, and a signature also opens the door for the mediator to be brought into
subsequent enforcement actions. The issue was discussed in detail by the Committee, and the
Committee determined that the mediator should not sign the agreement.

-45-
D. Advisory Committee on Mediator Standards – Complaints Against Mediators

In January 2000, the Supreme Court approved a set of Standards of Conduct for
Mediators in Court-Connected Programs (“Standards”). The Standards apply to all mediators,
whether they are court staff, volunteers, or paid by the parties, when they are acting in state
court-connected programs mediating matters in the Municipal Courts or in the Superior Court.
In adopting the Standards, the Court approved the creation of the Advisory Committee on
Mediator Standards (“Advisory Committee”), appointed by the Chief Justice. In addition to
assisting mediators by providing advice on interpretation of the Standards, the Advisory
Committee was charged with monitoring complaints about mediators from attorneys or parties in
mediation.
The Advisory Committee recommended a formal review process for complaints against
mediators that was presented to and approved by the Supreme Court Committee on
Complementary Dispute Resolution (“Supreme Court Committee on CDR”) during the 2005-
2007 Rules cycle. On August 7, 2007, with the approval of the Supreme Court, the Review
Process for Complaints Against Mediators became effective. Since August 2007, the Advisory
Committee has received seven complaints. All except one complaint that was resolved in the
vicinage have been resolved informally. The one remaining complaint is still in the investigative
phase.
1. Development of Formal Guidelines:
During the current Rules cycle the Advisory Committee commenced with the
development of formal guidelines to ensure consistent and efficient processing of complaints
against mediators. These guidelines will serve as a source of reference from the acknowledgment
-46-
of the complaint to its resolution as well as serve as an orientation manual for new members
appointed to this Committee.
2. Conditional Review of Fee Disputes:
Also during this Rules cycle, at the request of the Civil Practice and Family Practice
Committees, and with the support of the Supreme Court Committee on CDR, the Advisory
Committee will now review fee disputes against mediators when it appears that the complaint
raises a competency issue.

-47-
E. Mediator Education and Training

1. Mediation Conference:
The Education Subcommittee, charged with proposing sound minimum training and
curriculum requirements for Judiciary and court –annexed mediators, commenced the 2007-2009
Rules cycle crafting a proposal for a one day conference for mediation trainers and educators.
The purpose of the conference would be to provide a collaborative forum where experienced
trainers can share information and insights on the most current and successful mediator training
tools, techniques and curricula. The recorded product of the Conference discussions would
provide the Education Subcommittee with a wealth of information to guide their
recommendations for mediator training and education. In recognizing the importance of
promoting the highest quality and competency of Judiciary mediators, the full CDR Committee
has supported the Conference proposal. It is anticipated that much, if not all, of the de minimis
costs of the conference could be absorbed by co-sponsoring organizations interested in
promoting quality mediation in New Jersey.
2. Continuing Education and Reciprocal Training Relations:
In addition, the Education Subcommittee will continue discussions relevant to reciprocity
involving other training programs and to the need for increased continuing education
opportunities for roster mediators.
3. Standards of Quality and Competency for Mediators:
The Education Subcommittee will continue collecting and analyzing articles and
information from scholars and practitioners in New Jersey, and across the country, related to the
quality education of mediators. The Subcommittee has also undertaken to research the
experience of other states’ mediation training programs through objective data analyses (ie.,
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training hours and curricula, mentoring requirements, interviews with mediators in New Jersey
and nationwide, etc.) and more to provide a comprehensive barometer of current practices
throughout the country.
Through utilizing a variety of information gathering techniques, the Subcommittee will
be best positioned to offer mediator training recommendations to ensure New Jersey sets the
standard for mediator quality and competency.

Respectfully Submitted,

Judge Linda R. Feinberg, Chair Judge Mark J. Nelson
Judge Anthony J. Parrillo, Vice Chair Connie M. Pascale, Esq.
Peter Abeles Caroline M. Petrilla, Esq.
Judge Allison E. Accurso Jeffrey S. Posta, Esq.
Edward J. Bergman, Esq. Willard C. Shih, Esq.
Judge Nicholas S. Brindisi Barbara Sopronyi
Judge Paul Catanese Joseph A. Spinella, Esq.
Joseph H. Cerame, Esq. Richard H. Steen, Esq.
Judge Frank M. Ciuffani Peter R. Strohm, Esq.
Judge James D. Clyne (Ret.) Sandra Thaler-Gerber, Esq.
Judge Cataldo F. Fazio Carl B. Viniar, Esq.
Bonnie Blume Goldsamt, Esq. Judge M. Allan Vogelson (Ret.)
Judge Stephan C. Hansbury Judge Thomas L. Weisenbeck
John R. Holsinger, Esq. Barbara Weisman, Esq.
Prof. Jonathan M. Hyman William J. Wolf, Esq.
Karen L. Jordan, DAG
Regina Waynes Joseph, Esq. AOC Staff:
Judge Alexander D. Lehrer (Ret.) Leigh G. Eastty
Judge Maureen B. Mantineo Kathleen M. Gaskill
Rosemarie Marinen-Gabriel Gina G. Bellucci, Esq.
Judge Susan F. Maven Michelle V. Perone, Esq.
Suzanne M. McSorley, Esq. Lawrence E. Walton, Esq
Judge Robert J. Mega

-50-

2007-2009 Rules Cycle

Report of the New Jersey Supreme Court
Committee on Complementary Dispute Resolution








Appendix

Pilot Study
Municipal Presumptive Mediation Report





















Pilot Study: Presumptive Mediation Report


October 31, 2008









Submitted by:

Supreme Court Committee on Complementary
Dispute Resolution – Municipal Programs
Subcommittee


Subcommittee Members:

Hon. Paul Catanese, P.J.M.C., Chair
Hon. Cataldo F. Fazio, J.M.C.
Rosemarie Marinan-Gabriel, M.D.M.
Jonathan Hyman, Esq.
Joseph Cerame, Esq.

Staff:

Florence S. Powers, Esq. (Ret.)
Lawrence E. Walton, Esq.
Rebeca N. RodrĂ­guez, Administrative Specialist IV

1
I. Introduction
In 2007, the statewide municipal courts system handled approximately 545,004
cases per month. On an average, there is a 53.25% backlog of pending cases
monthly.1 One means of reducing backlog is to encourage parties to resolve matters
through means other than trial. Mediation is one alternative that may be used to divert
litigants from formal trial procedures.
Currently R. 7:8-1 of the Rules Governing the Courts of New Jersey provides:
If a person seeks to file or has filed a complaint charging an
offense that may constitute a minor dispute, the court may issue a
notice to the person making the charge and the person charged,
requiring their appearance before the court or before a person or
program designated by the court and approved by the Assignment
Judge pursuant to R. 1:40-8 (Mediation of Minor Disputes in
Municipal Court Actions). If on the return date of a summons, it
appears to the court that the offense charged may constitute a
minor dispute, the court may order the persons involved to
participate in mediation in accordance with R. 1:40-8.

The language of the rule indicates that mediation is permitted as an alternative to
trial in municipal court. The Municipal Programs Subcommittee (Subcommittee) of the
Supreme Court Committee on Complementary Dispute Resolution (CDR Committee)
proposed initiating a presumptive mediation pilot program to determine its efficacy as an
alternative to trials in municipal court. An earlier pilot program conducted by the
Superior Court, Civil Division found that mediation had a “significant potential for
handling a variety of civil cases . . . [t]he data derived clearly demonstrated that
mediation in appropriate cases brings about early resolution after only nominal
discovery.”2

1
State of New Jersey Judiciary, Administrative Office of the Courts, Reports on Demand-Municipal Courts
Reports Case Flow Summary All Cases 2007
2
State of NJ Judiciary, Supreme Court Committee on Complementary Dispute Resolution, Report on the
Evaluation of the Presumptive Mediation Pilot Program (2002)

2
II. Background
In April 2005, the Subcommittee recommended that a presumptive mediation
pilot program be initiated to explore the effectiveness and efficiency of resolving certain
types of cases in municipal court by diverting them from the traditional courtroom
setting. Presumptive mediation would require all parties in minor disputes, as defined
by R. 7:8-1, to enter into mediation rather than go to court. The CDR Committee
endorsed the recommendation of the Subcommittee in May 2005. The Supreme Court
approved the pilot program in July 2005.
The Subcommittee designated seven municipal courts to participate in the pilot
program. They were: (1) North Wildwood Municipal Court, Cape May County; (2) Fort
Lee Municipal Court, Bergen County; (3) Hoboken Municipal Court, Hudson County; (4)
Lawrence Township Municipal Court, Mercer County; (5) Fair Lawn Municipal Court,
Bergen County; (6) Galloway Township Municipal Court, Atlantic County; and, (7) West
Deptford Municipal Court, Gloucester County.
The courts that were selected were located in municipalities that represented a
diverse cross-section of municipalities throughout the state. North Wildwood is a shore
community of 4,900 located in the southern part of the state in Cape May County. It is
2.1 square miles with a population density of roughly 2,300 people per square mile.
Fort Lee is an urban municipality located in North Jersey in Bergen County. It is
about 2.9 square miles with a population of 37,000. It has a population of about 12,700
people per square mile.
Hoboken is a city of 1.3 square miles located in Hudson County in North Jersey
as well. It is a densely populated urban community of about 40,000 with about 30,700
people per square mile. Like Fort Lee, it is in close proximity to New York City.

3
Two suburban municipalities were chosen to participate in the pilot: Lawrence
Township and Fair Lawn Borough. Lawrence is a municipality with a population of
31,800 situated on 22.2 square miles, approximately 1,400 people per square mile. It is
located in the central part of the state in Mercer County between Princeton and Trenton.
Fair Lawn is located in North Jersey in Bergen County and has a population of 31,000.
It is 5.2 square miles and has an estimated population 5,900 people per square mile.
Both West Deptford and Galloway Townships are located in the southern part of
the state. West Deptford is a suburban community with a population of 22,000.
Situated on roughly 17 square miles, it has a population density of 1,300 people per
square mile. It is located in Gloucester County and it is in close proximity to
Philadelphia. Galloway is located in Atlantic County near the border of Burlington
County. It has approximately 36,000 inhabitants, however, because it is 115 square
miles, it is relatively sparsely populated with 313 people per square mile.

III. Description of Pilot Program
A. Duration of the Program
The Subcommittee recommended that the pilot program be conducted for
eighteen months. The actual survey of the program participants would occur for twelve
months to allow enough time for a sufficient amount of data to be collected, from
January 1, 2006 to December 31, 2006. The data would be reviewed initially after six
months and then again after twelve months. The final six months of the eighteen month
pilot would be used to analyze the data collected.


4
B. Types of Cases to Include in Pilot
R. 7:8-1 provides that “the court may order the persons involved to participate in
mediation in accordance with R. 1:40-8. No referral to mediation shall be made,
however, if the complaint involves (1) serious injury, (2) repeated acts of violence
between the parties, (3) clearly demonstrated psychological or emotional disability of a
party, (4) incidents involving the same persons who are already parties to a Superior
Court action between them, (5) matters arising under the Prevention of Domestic
Violence Act (N.J.S.A. 2C:25-17 et seq.), (6) a violation of the New Jersey Motor
Vehicle Code (Title 39), or (7) matters involving penalty enforcement actions.” The
Subcommittee determined that only those minor disputes that are not barred by the
language of R. 7:8-1 should be included in the presumptive mediation pilot program. In
addition, the Subcommittee decided that municipal and code enforcement matters
should not be a part of the pilot.
C. Methodology
The Subcommittee developed three distinct surveys using Likert–scaling. Likert-
scale item surveys are generally used to investigate how respondents agree or disagree
with a series of statements. The respondents rate their degree of agreement or
disagreement of a given statement by rating numbered categories from 1 to 5. Because
there are five rating levels, this type of survey is usually referred to as a “5-level Likert
item” survey. In a 5-level Likert item survey, the categories represent a continuum that
measures a respondent’s attitude about a given statement where 1 would represent the
respondent’s strongest disagreement with the statement and 5 would be the strongest
agreement. Likert-scale item surveys are generally used to gather information on
feelings, opinions or attitudes.

5
The surveys developed by the Subcommittee were designed to discern the
participating respondents’ attitude toward the effectiveness of mediation by listing a
series of statements regarding the mediation process and asking the respondents to
rate their opinion with regard to the statement from “strongly disagree” to “strongly
agree.” One set of statements was developed for response by the involved parties, i.e.
defendant and complaining witness. Appendix Table 1 is ‘All Parties Surveys.’ It is a
summation of three tables: Appendix Table 2 – Defendants Surveys; Appendix Table 3
– Complaining Witnesses Surveys; and, Appendix Table 4 - Parties Not Identified
Surveys. The statements in these surveys focused on the parties’ satisfaction with the
mediation process. Another set of statements, which dealt with the efficacy of
mediation in terms of time and paperwork, was developed for response by the judge
and court staff. This set of statements is in Appendix Table 5 - Judges and Court Staff
Surveys. A third and final set of statements was developed for the mediators
themselves. It can be found in Appendix Table 6 - Mediator Surveys. The statements
in this set sought to examine the mediators’ opinions about the type of cases being
directed to mediation and whether mediation was effective.

IV. Survey of Parties
The Subcommittee developed an informational pamphlet entitled ‘Mediation in
the Municipal Courts: Resolving Cases Without Going Before a Judge.’ The pamphlet
was written in plain English and was designed to introduce and explain mediation to the
public. It was also intended to foster the acceptance of mediation as an alternative to
trial.

6
It was determined that the pamphlet would be made available to the public and
complaining witnesses during court hours. If a private citizen filed a complaint that was
amenable to mediation, he or she would be advised that the court would send the case
to mediation. The individual would be provided a copy of an intake form entitled
“Mediation Information”, a copy of which may be found in Appendix Two. The form
would be completed, signed and dated by the complaining witness at that time. Court
staff would ascertain whether any special accommodations were necessary, such as an
interpreter or disability accommodations. Depending on the operation of the court, the
mediation would then be scheduled. For example, in some courts, if both parties
appeared for court, they would be sent to mediation on the same day. In others, the
mediation would be scheduled after filing, at a time when court was not in session.
Directions to the location of the mediation session, any special instructions and
notification would be provided to the parties. At the close of the mediation session, if
the parties reached an agreement, the mediator would provide them with a written
mediation agreement which they would sign. If the parties failed to reach an
agreement, the unresolved matter would be referred to the court for further proceeding.
In either case, the mediator would ask the parties to complete a mediation survey.
The surveys collected were forwarded to the division manager in each vicinage
and then sent to the project coordinator for input and analysis.

V. Analysis of Surveys
Appendix Table 1 summarizes the responses of parties who participated in
mediation during the study period. There were 202 individuals who responded to the
survey. Of that number, approximately 42% identified themselves as complaining

7
witnesses, 35% as defendants and 23% did not identify themselves as either. For
clarity sake, the result for each of the statements in the surveys will be noted separately.
General discussion of the results concludes the section. Throughout the analyses, the
calculated percentages may be slightly skewed due to rounding.

Statement 1: The explanation of the mediation program that you received before
mediation was adequate.
There were 202 responses to this statement. Seventy-one participants identified
themselves as defendants, 85 identified themselves as complaining witnesses and 46
were unidentified. The responses were as follows: 4 participants (2%) strongly
disagreed; 3 participants (1%) disagreed; 18 participants (9%) were neutral; 59
participants (29%) agreed; and 118 participants (58%) strongly agreed. The mean
score for this statement for all parties was 4.41 (see Appendix Table 1). The mean
score to this statement for defendants was 4.56 (see Appendix Table 2), for complaining
witnesses it was 4.41 (see Appendix Table 3), and for unidentified respondents it was
4.15 (see Appendix Table 4).

Statement 2: The mediator was pleasant and courteous.
There were 197 responses to this statement. Seventy participants identified
themselves as defendants, 83 identified themselves as complaining witnesses and 44
were unidentified. The responses were as follows: 2 participants (1%) strongly
disagreed; 2 participants (1%) disagreed; 8 participants (4%) were neutral; 38
participants (19%) agreed; and 147 participants (75%) strongly agreed. The mean
score for all parties to this statement was 4.65 (see Appendix Table 1). The mean

8
score to this statement for defendants was 4.70 (see Appendix Table 2), for complaining
witnesses it was 4.71 (see Appendix Table 3), and for unidentified respondents it was
4.48 (see Appendix Table 4).

Statement 3: I was satisfied with the mediation program and the way my mediation was
handled.
There were 197 responses to this statement. Sixty-nine participants identified
themselves as defendants, 85 identified themselves as complaining witnesses and 43
were unidentified. The responses were as follows: 5 participants (3%) strongly
disagreed; 5 participants (3%) disagreed; 16 participants (8%) were neutral; 65
participants (33%) agreed; and 106 participants (54%) strongly agreed. The mean
score to this statement for all parties was 4.33 (see Appendix Table 1). The mean
score to this statement for defendants was 4.46 (see Appendix Table 2), for complaining
witnesses it was 4.27 (see Appendix Table 3), and for unidentified respondents it was
4.23 (see Appendix Table 4).

Statement 4: The mediator was fair and impartial.
There were 199 responses to this statement. Sixty-nine participants identified
themselves as defendants, 85 identified themselves as complaining witnesses and 45
were unidentified. The responses were as follows: 3 participants (2%) strongly
disagreed; 3 participants (2%) disagreed; 7 participants (4%) were neutral; 62
participants (31%) agreed; and 124 participants (62%) strongly agreed. The mean
score to this statement for all parties was 4.61 (see Appendix Table 1). The mean
score to this statement for defendants was 4.57, (see Appendix Table 2), for

9
complaining witnesses it was 4.54 (see Appendix Table 3), and for unidentified
respondents it was 4.38 (see Appendix Table 4).

Statement 5: The mediator kept the discussion direct to the main issues of the dispute
during the mediation.
There were 198 responses to this statement. Sixty-eight participants identified
themselves as defendants, 83 identified themselves as complaining witnesses and 47
were unidentified. The responses were as follows: 3 participants (2%) strongly
disagreed; 3 participants (2%) disagreed; 11 participants (6%) were neutral; 58
participants (29%) agreed; and 123 participants (62%) strongly agreed. The mean
score to this statement for all parties was 4.49 (see Appendix Table 1). The mean
score to this statement for defendants was 4.59 (see Appendix Table 2), for complaining
witnesses it was 4.49 (see Appendix Table 3), and for unidentified respondents it was
4.34 (see Appendix Table 4).

Statement 6: The mediator appeared to be genuinely interested in the settlement of my
dispute.
There were 196 responses to this statement. Sixty-eight participants identified
themselves as defendants, 83 identified themselves as complaining witnesses and 45
were unidentified. The responses were as follows: 4 participants (2%) strongly
disagreed; 1 participant (1%) disagreed; 19 participants (10%) were neutral; 46
participants (23%) agreed; and 126 participants (64%) strongly agreed. The mean
score to this statement for all parties was 4.47 (see Appendix Table 1). The mean
score to this statement for defendants was 4.60 (see Appendix Table 2), for complaining

10
witnesses it was 4.45 (see Appendix Table 3), and for unidentified respondents it was
4.33 (see Appendix Table 4).

Statement 7: The mediator encouraged both parties to reach an agreement.
There were 199 responses to this statement. Seventy participants identified
themselves as defendants, 84 identified themselves as complaining witnesses and 45
were unidentified. The responses were as follows: 2 participants (1%) strongly
disagreed; 4 participants (2%) disagreed; 12 participants (6%) were neutral; 58
participants (29%) agreed; and 123 participants (62%) strongly agreed. The mean
score to this statement for all parties was 4.49 (see Appendix Table 1). The mean
score to this statement for defendants was 4.61 (see Appendix Table 2), for complaining
witnesses it was 4.46 (see Appendix Table 3), and for unidentified respondents it was
4.33 (see Appendix Table 4).

Statement 8: If your mediation resulted in a written agreement - I was satisfied with the
terms of the agreement.
There were 186 responses to this statement. Sixty-seven participants identified
themselves as defendants, 77 identified themselves as complaining witnesses and 42
were unidentified. The responses were as follows: 4 participants (2%) strongly
disagreed; 3 participants (2%) disagreed; 13 participants (7%) were neutral; 60
participants (32%) agreed; and 106 participants (57%) strongly agreed. The mean
score to this statement for all parties was 4.40 (see Appendix Table 1). The mean
score to this statement for defendants was 4.57 (see Appendix Table 2), for complaining

11
witnesses it was 4.30 (see Appendix Table 3), and for unidentified respondents it was
4.33 (see Appendix Table 4).

Statement 9: If your mediation did not result in an agreement - I was satisfied that the
mediator did everything possible to bring about a settlement.
There were 132 responses to this statement. Forty-five participants identified
themselves as defendants, 51 identified themselves as complaining witnesses and 36
were unidentified. The responses were as follows: 3 participants (2%) strongly
disagreed; 1 participant (1%) disagreed; 15 participants (11%) were neutral; 41
participants (31%) agreed; and 72 participants (55%) strongly agreed. The mean score
to this statement for all parties was 4.35 (see Appendix Table 1). The mean score to
this statement for defendants was 4.27 (see Appendix Table 2), for complaining
witnesses it was 4.41 (see Appendix Table 3), and for unidentified respondents it was
4.36 (see Appendix Table 4).

Statement 10: If I become a party to a dispute in the future, I am likely to want to try
mediation again.
There were 190 responses to this statement. Sixty-seven participants identified
themselves as defendants, 81 identified themselves as complaining witnesses and 42
were unidentified. The responses were as follows: 8 participants (4%) strongly
disagreed; 4 participants (2%) disagreed; 23 participants (12%) were neutral; 51
participants (27%) agreed; and 104 participants (55%) strongly agreed. The mean
score to this statement for all parties was 4.26 (see Appendix Table 1). The mean
score to this statement for defendants was 4.48, (see Appendix Table 2), for

12
complaining witnesses it was 4.05 (see Appendix Table 3), and for unidentified
respondents it was 4.31 (see Appendix Table 4).

Statement 11: How many times did you come to court and/or mediation in this case?
There were 183 responses to this statement. Sixty-eight participants identified
themselves as defendants, 78 identified themselves as complaining witnesses and 37
were unidentified. The responses were as follows: 135 participants (74%) appeared
once to mediate their case; 24 participants (13%) appeared twice; 17 participants (9%)
appeared three times; 5 participants (3%) appeared four times and two participants
(1%) appeared five times.

All participants appear to have been satisfied with the mediation process. The
mean score for each statement was greater than 4. On the five-level Likert Scale, this
indicates that the participants agreed with the efficacy of mediation. What is interesting
and perhaps should be studied further are the attitudinal differences between
defendants and complaining witnesses.
The scores to Statement 4, which asked about the impartiality of the mediators,
indicated that both parties felt that the mediators were impartial. The defendants’ score
was 4.57 and the complaining witness score was 4.54. This suggests that the
difference in attitude was not due to a perception that the mediator was biased. The
inference may be that complaining witnesses felt unsatisfied with the mediation process
because they did not appear before a judge. Again, this is a statement that perhaps
should be explored further.

13
Statement 9 asked if the participants were satisfied with the mediator despite not
reaching an agreement. The difference in mean score of all parties was negligible.
This supports the assumption that the participants were not dissatisfied with the
mediators.
Statement 10 is important because it reveals the participants’ experience with the
mediation process and the likelihood that they would choose it as an option to trial. The
difference in mean scores between the defendant and complaining witnesses suggests
that the complaining witnesses were less satisfied with the mediation process than the
defendants. The mean score of the remaining 42 participants who were unidentified
was 4.31.

VI. Survey of the Judge and Court Staff
There were 34 responses to the Judge and Court Staff Surveys. The judge and
court staff survey was composed of a total of eleven statements. Seven statements
were of the five-level Likert item type and four required a written opinion. As with the
Parties’ Surveys, each Likert item statement will be noted separately with a discussion
thereafter.

Statement 1: Presumptive mediation is an efficient way to manage caseflow.
There were 20 responses to this statement. There were no participants who
strongly disagreed or disagreed with this statement (0%). Five participants (25%) were
neutral; nine participants (45%) agreed and six participants (30%) strongly agreed. The
mean score was 4.05.


14
Statement 2: As a result of presumptive mediation, there was more paperwork.
There were 33 responses to this statement. There were two participants (6%)
who strongly disagreed with this statement. There were seven participants (21%) who
disagreed with this statement. Eight participants (25%) were neutral; eight participants
(25%) agreed and eight participants (25%) strongly agreed. The mean score was 3.52.

Statement 3: There was very few or no problems assigning mediators to cases.
There were 31 responses to this statement. There was one participant (3%) who
strongly disagreed with this statement, one (3%) who disagreed and three participants
(10%) who were neutral. Eight participants (26%) agreed and eighteen participants
(58%) strongly agreed. The mean score was 4.32.

Statement 4: There were very few or no problems with the parties.
There were 31 responses to this statement. There was one participant who
strongly disagreed with this statement (3%). There were no participants who disagreed
with this statement (0%). Nine participants (29%) were neutral; seventeen participants
(55%) agreed and four participants (13%) strongly agreed. The mean score was 3.74.

Statement 5: The parties seemed satisfied with mediation.
There were 31 responses to this statement. There were no participants (0%)
who strongly disagreed or disagreed with this statement. Two participants were neutral
(6%); twenty-three participants (74%) agreed and six participants (19%) strongly
agreed. The mean score was 4.13.


15
Statement 6: The pilot project caused very few or no scheduling problems.
There were 33 responses to this statement. There was one participant (3%) who
strongly disagreed with this statement. There were no participants (0%) who disagreed
with this statement. Two participants (6%) were neutral; nineteen (58%) agreed and
eleven participants (33%) strongly agreed. The mean score was 4.18.

Statement 7: Presumptive mediation is an efficient way to handle minor disputes.
There were 34 responses to this statement. There was one participant who
strongly disagreed with this statement (3%). There were no participants (0%) who
disagreed with this statement. Eight participants (24%) were neutral; nine (26%) agreed
and sixteen participants (47%) strongly agreed. The mean score was 4.15.

The scores for Statements 1, 3, 5, 6 and 7 were all greater than 4 which indicates
that the respondents agreed or strongly agreed with the statements made regarding
presumptive mediation. The responses to Statements 2 and 4 indicate some
ambivalence with regard to presumptive mediation. It is the recommendation of the
Subcommittee that consideration be given to a follow-up inquiry to these statements.
Statement 2 stated “As a result of presumptive mediation, there was more
paperwork.” The mean score for this statement was 3.52. It implies that there is no
significant time-savings with regard to paperwork for presumptive mediation.
It should be noted that this statement was awkwardly phrased and the
respondents could have easily misread it. To ensure that the respondents were reading
the statement correctly and responding to it appropriately, the statement could have
been reframed to say, “As a result of presumptive mediation, there was less

16
paperwork.” If presumptive mediation is approved statewide, any future evaluation
regarding this topic should be reviewed to ensure that it is clear. Also, the respondents
should be randomly interviewed to garner more detailed information about staff attitude
towards presumptive mediation.
Statement 4 sought to determine whether court staff perceived any problems
associated with the presumptive mediation pilot. The mean score for this statement
was 3.74 which indicates that the respondents’ attitude toward the pilot was better than
neutral but was not in full agreement. The responses to this statement may need to be
explored further to determine what if any ambivalence court staff feels about
presumptive mediation.
The judges and court staff were asked to respond to four statements that were
non-Likert type statements. These statements were designed to elicit opinions from the
respondents. They were as follows:

Statements 8: If I could add another case type to those that must be mediated, it would
be:
There were three responses to this statement. The respondents indicated that
they would add: (1) motor vehicle cases where citizens were the complaining witnesses;
(2) bad check cases; and (3) cross complaints.

Statement 9: If I could eliminate one case type from those that must be mediated, it
would be:
There were three responses to this statement and all three responses indicated
that they would eliminate simple assault from the mediation process.

17
Statement 10: The best part of the presumptive mediation pilot project was:
This statement elicited eleven responses. The benefits of presumptive mediation
that were cited were: (1) it permits cases to be resolved without the involvement of a
judge; (2) it presents an alternative to resolving cases without the defendant going to
first appearance; (3) there were fewer first appearances scheduled; (4) it reduces
paperwork; (5) it reduces the number of times that litigant must appear; (6) it saves
court time; (7) it’s an effective way of handling time consuming disputes; and, (8) it is an
effective case management tool.

Statement 11: The one thing I would change about the presumptive mediation pilot
project would be:
There were twelve responses to this statement. The suggested changes
included: (1) when parties are being directed to mediation they should be not allowed to
file complaints but instead issue “notice in lieu of complaints;” (2) the letter notifying the
mediating parties should be automated; (3) court staff should be permitted to evaluate
which cases should go to mediation; and, (4) there should be trained mediators rather
than volunteers.


18
VII. Survey of Mediators
Seven mediators responded to this survey. The responses to the statements are
noted below.

Statement 1: Mediation was appropriate for the types of cases that you received.
There were seven responses to this statement. Two participants agreed and five
strongly agreed. None felt that the cases were inappropriate for mediation.

Statement 2: The court's procedures were efficient in getting the cases to you.
There were six responses to this statement. Five respondents strongly agreed
with this statement and one was neutral.

Statement 3: The presumptive mediation pilot project created substantially more
paperwork for you.
There were six responses to this statement. One respondent strongly disagreed,
three disagreed, one was neutral and one agreed.

Statement 4: The scheduling of the mediation sessions was done effectively.
There were six responses to this statement. Three strongly agreed, two agreed
and one was neutral.


19
Statement 5: The parties were more familiar with the mediation process as a result of
the written materials given to them
There were seven responses to this statement. Three agreed with the statement
in this statement and four were neutral.

Statement 6: I recommend that presumptive mediation should be used statewide.
There were six responses to this statement. Four strongly agreed, one agreed
and one disagreed.

Statement 7: I was satisfied with the presumptive mediation pilot program.
There were six responses to this statement. Four strongly agreed, one agreed
and one disagreed.

Statement 8: What suggestions do you have to improve the program?
Of the statements posed to the mediators, this one provided the most useful
information from the mediators’ critique of the mediation process. There were four
responses to this statement. It was suggested: (1) that the court should depend on the
mediator’s expertise; (2) that mediation session should be scheduled earlier so that
cases can be resolved by mid-morning; and (3) that parties should not be given the
opportunity to rate mediators. One mediator opined that one problem with the mediation
process is that parties feel that they have not “had their day in court.”


20
VIII. Pilot Program Challenges
Because the study sought direct input from all interested parties, it relied on data
collected from the participating municipal courts. The results of this type of study are
only as good as the data collected. Issues regarding the collection of the data are
highlighted below.
A. Issues with data
There have been some problems associated with the collection and procedures
used in the collection of the data for this study. The original design of the study was for
data from defendants and complaining witnesses to be collected for twelve months. At
the end of each month, the data would be collected by court staff and forwarded to the
coordinator of the project. An analysis of the data was to be performed at the end of the
sixth month and then again at the end of the twelfth month. The final report was to be a
complete summation and analysis of the defendant and complaining witness data, as
well as data collected from surveys of judges and court staff and mediators.
Unfortunately little of the data that was to be collected at the end of six months
was found. This problem can possibly be attributed to two factors: (1) there was little
response from the litigants and other interested parties, i.e. mediators or court staff; and
(2) there were some problems with the transfer the data to the coordinator and the
subsequent input of the data into a spreadsheet.
B. Issues with courts selected
One of the objects of the study was to determine the efficacy of presumptive
mediation in a variety of court settings, i.e. small rural courts, suburban courts, and
large urban courts. While the courts chosen to participate in the studies did fit into the
categories selected for study, two of the courts, Fairlawn and Fort Lee, as a rule, do not

21
utilize mediation. As a result, no useful data were obtained from these courts.
Exacerbating the problem presented by this lack of data was the fact that both courts
are located in the same vicinage, this means that the study ignores an important area of
the state, i.e. Bergen County.
North Wildwood Municipal Court was also chosen to participate in the study.
This court is located in a unique community: it is a shore town with a large seasonal
population. Because the data were not preserved carefully by month over the twelve-
month duration, there were no usable data available. This court particularly provided an
exceptional opportunity to determine the effectiveness of mediation in rural
municipalities with a fluid population.
C. Issues with Methodology
Likert Scale surveys are generally used to determine the attitudes of a given
study group. They are frequently used in psychology studies. Consequently, the
information that was captured by this survey measured the attitudes of the participant
involved in the mediation process, i.e. the parties, judges, court staff, and mediators.
However, what the data are not able to provide are such relevant information as how
much time is saved by the courts as a result of mediation, what resources are saved or
expended, or what the relapse rate is, i.e. parties returning to mediation for the same
problem. In order to secure this information, more probing investigatory tools should
have been employed, including in-depth interviews with court staff, judges, defendants,
complaining witnesses, and mediators.
The Likert Scale survey is a useful tool to gather information on attitudes.
However, while there are a number of statistical implications that may be derived from

22
this type of survey, the Likert Scale is difficult to manipulate to gain traditional statistical
illations.
D. Usefulness of the Study
The information gathered does yield positive inferences. In those courts that
participated in this study, both the defendant and complaining witness appear to be
satisfied with the process. The complaining witnesses appear to be less slightly
satisfied, however. This lower satisfaction may be attributable to the desire of the
complaining witnesses to “have their day-in-court” or the desire to punish the
defendants. The reason for this incongruence in attitude would require additional
research that could include a detailed interview with the complaining witnesses.
Based on the data gathered from municipal court judges and court staff,
mediation appears to be an effective alternative to a trial. There are some areas
however that should be closely monitored during full implementation of the program to
determine cost-effectiveness and resolve procedural problems.

IX. Conclusion
This study sought to determine effectiveness of presumptive mediation by
examining the attitudes of all parties involved in the process, i.e. the defendant, the
complaining witness, the judge, the court staff and the mediator. Presumptive
mediation assumes that all minor disputes, with certain exceptions, would be sent to
mediation for resolution at the time the complaint is filed.
The benefits of presumptive mediation include a decreased number of cases
scheduled for court appearances, a shorter period of time from filing to disposition and
an increased use of court volunteers. Currently, presumptive mediation is permitted but

23
not required.3 Requiring cases to undergo this process will increase the number of
cases resolved outside the courtroom, allotting more time during a court session to
adjudicate mandatory court appearances, not guilty pleas, and trials, hence aiding in the
reduction of backlog.
It is the recommendation of this Subcommittee that the presumptive mediation
pilot be expanded to collect additional data from other courts around the state.
Expansion will improve the quality of the data collected thus far and corroborate the
existing study. Three municipalities from each vicinage, of similar size to those used for
the initial pilot, may be used. Recommendations for the expanded pilot program are
as follows:
1. Continue using the same surveys for the respective parties with minor
revisions to accommodate the collection of data. Revise the survey to include
a line for the name of the municipality and the date the survey was
completed. Communicate with judges, court staff and mediators to brief them
on the time frame and data collection.
2. Monitor the accurate collection of data on a monthly basis. In addition to
collecting surveys from the interested parties, participating courts must
complete the monthly mediation statistical summary report and submit to the
vicinage Municipal Division office. Vicinage staff will compile the data into a
single report that will then be forwarded to the AOC. Accurate monthly
records will determine the amount of cases that go to mediation, those that
are settled and those that are returned to court for resolution.

3
During calendar year 2006, 61% of municipal courts referred cases to mediation.

24
3. Monitor success of presumptive mediation through the comparison of success
rate prior to implementation. The CDR unit collects statistical data from each
vicinage monthly. The success rate and the number of cases that are
returned to court are captured on the report.
4. Upon conclusion and immediate analysis of the twelve-month expansion, and
if the results are consistent with the original pilot, a recommendation can be
made to implement presumptive mediation statewide.
If the recommendation is made to implement presumptive mediation statewide, it
is recommended that motor vehicle matters where there is no police officer as a
complainant (including cross complainants) be added to the types of cases approved for
mediation. Addition of this type of complaint will require a court rule change to R.1:40-
8(a)(6) and R.7:8-1(6).
The Subcommittee also recommends improved case processing through
enhancements in the Automated Complaint System (ACS) that accommodate mediation
scheduling and automated mediation notices. The manual administration of the
program requires court staff to schedule cases according to mediators’ schedules and
notice involved parties without the benefit of a central electronic system. Hard copy
forms are completed and mailed to the involved parties to advise them of the
appearance date. Case files are pulled from the master file and housed separately until
cases are returned from mediation. The paperwork involved can be significantly
reduced through an ACS enhancement.
Manual administration of the program significantly contributes to the ambiguity of
statistical data collection. Tracking of cases disposed through mediation is only
available if court personnel use the ACS disposition code of M for such cases.

25
Presently this code is not used consistently. Through the use of the monthly Police
Disposition Report in RMDS, a comparison can then be made with the manual Monthly
Municipal Mediation Statistical Report presently used to report mediation activity to
determine its accuracy.
Due to the challenges presented during this study in acquiring and compiling
statistical data, the Subcommittee recommends that improved controls for collection and
monitoring be implemented by the vicinage municipal divisions as well as the CDR unit.
Municipal courts must be retrained on a standardized form of data collection until such
time that ACS is enhanced and appropriate RMDS reports are made available.
To further improve the quality of the mediation program and to assist in the
managing of an increased number of cases once presumptive mediation is implemented
statewide, the Subcommittee recommends a tool be developed that permits municipal
division staff to evaluate the objective and subjective aspects of the mediation program.
A form of in-session observation, where the observer is held to the same confidentiality
restrictions as a mediator, may be helpful to observe the process in motion. Regular
assessment of mediators through surveys will help identify problems they may face with
the process and identify training needs.

26











Appendix One












27

No.
Appendix Table 1: All Parties Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree



1

2

3

4

5

Totals

Average

1
The explanation of the mediation program that you received
before mediation was adequate.
West Deptford 1 0 1 9 24 35 4.57
Lawrence Twp 0 1 3 7 11 22 4.27
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 1 0 7 15 26 49 4.33
Galloway Twp 2 2 7 28 57 96 4.42
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 1 Totals 4 3 18 59 118 202 4.41
Percent 2% 1% 9% 29% 58% 100%

2
The mediator was
pleasant and courteous.
West Deptford 1 0 2 4 27 34 4.65
Lawrence Twp 0 0 1 6 14 21 4.62
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 2 0 8 38 48 4.71
Galloway Twp 1 0 5 20 68 94 4.64
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 2 Totals
2 2 8 38 147 197 4.65
Percent 1% 1% 4% 19% 75% 100%

3
I was satisfied with the mediation program and the way my
mediation was handled.
West Deptford 1 0 1 13 20 35 4.46
Lawrence Twp 0 1 1 9 9 20 4.30
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 1 1 3 13 30 48 4.46
Galloway Twp 3 3 11 30 47 94 4.22
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 3 Totals 5 5 16 65 106 197 4.33
Percent 3% 3% 8% 33% 54% 100%

28


No.
Appendix Table 1: All Parties Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree



1

2

3

4

5

Totals

Average
4 The mediator was fair and impartial.
West Deptford 1 0 0 10 23 34 4.59
Lawrence Twp 1 0 2 8 10 21 4.24
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 3 1 16 29 49 4.45
Galloway Twp 1 0 4 28 62 95 4.58
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 4 Totals
3

3

7

62

124 199
4.61
Percent 2% 2% 4% 31% 62% 100%
5 The mediator kept the discussion direct to the main issues of
the dispute during the mediation.

West Deptford 1 0 0 10 24 35 4.60
Lawrence Twp 0 0 2 10 9 21 4.33
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 2 4 12 29 47 4.45
Galloway Twp 2 1 5 26 61 95 4.51
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 5 Totals 3 3 11 58 123 198 4.49
Percent 2% 2% 6% 29% 62% 100%
6 The mediator appeared to be genuinely interested in the
settlement of my dispute.


West Deptford 1 0 1 9 24 35 4.57
Lawrence Twp 0 0 2 8 10 20 4.40
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 1 0 4 13 29 47 4.47
Galloway Twp 2 1 12 16 63 94 4.46
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 6 Totals 4 1 19 46 126 196 4.47
Percent 2% 1% 10% 23% 64% 100%

29


No.
Appendix Table 1: All Parties Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree



1

2

3

4

5

Totals

Average

7 The mediator encouraged both parties to reach an agreement.

West Deptford 1 2 0 10 22 35 4.43
Lawrence Twp 0 0 0 11 10 21 4.48
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 1 5 13 29 48 4.46
Galloway Twp 1 1 7 24 62 95 4.53
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 7 Totals 2 4 12 58 123 199 4.49
Percent 1% 2% 6% 29% 62% 100%

8
If your mediation resulted in a written agreement - I was satisfied
with the terms of the agreement.
West Deptford 1 0 2 7 23 33 4.55
Lawrence Twp 0 0 2 8 11 21 4.43
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 3 5 14 24 46 4.28
Galloway Twp 3 0 4 31 48 86 4.41
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 8 Totals 4 3 13 60 106 186 4.40
Percent 2% 2% 7% 32% 57% 100%

9
If your mediation did not result in an agreement - I was satisfied that
the mediator did everything possible to bring about a settlement.
West Deptford 2 0 2 8 15 27 4.26
Lawrence Twp 0 0 2 5 4 11 4.18
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 0 0 6 10 18 34 4.35
Galloway Twp 1 1 5 18 35 60 4.42
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 9 Totals 3 1 15 41 72 132 4.35
Percent 2% 1% 11% 31% 55% 100%

30


No.
Appendix Table 1: All Parties Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree



1

2

3

4

5

Totals

Average
10 If I become a party to a dispute in the future, I am likely to want
to try mediation again.

West Deptford 2 0 2 9 22 35 4.40
Lawrence Twp 0 1 5 6 8 20 4.05
North Wildwood 0 0 0 0 0 0 0.00
Hoboken 2 2 4 12 25 45 4.24
Galloway Twp 4 1 12 24 49 90 4.26
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 10 Totals 8 4 23 51 104 190 4.26
Percent 4% 2% 12% 27% 55% 100%

11 How many times did you come to court and/or mediation in this case?

once

twice

three

four

five
West Deptford 25 5 0 0 0 30
Lawrence Twp 17 4 0 0 0 21
North Wildwood 0 0 0 0 0 0
Hoboken 35 3 6 2 1 47
Fair Lawn 0 0 0 0 0 0
Galloway Twp 58 12 11 3 1 85
Fort Lee 0 0 0 0 0 0
0
Times Total 135 24 17 5 2 183
Percent 74% 13% 9% 3% 1% 100%

31


No.
Appendix Table 2: Defendant Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree

1

2

3

4

5

Totals

Average
1 The explanation of the mediation program that you received before
mediation was adequate.
West Deptford 1 11 12 4.92
Lawrence Twp 1 4 5 10 4.40
North Wildwood 0 0.00
Hoboken 1 7 11 19 4.53
Galloway Twp 1 1 1 6 21 30 4.50
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 1 Totals 1 1 3 18 48 71 4.56
Percent 1% 1% 4% 25% 68% 100%
2 The mediator was pleasant and courteous.
West Deptford 1 11 12 4.92
Lawrence Twp 1 3 5 9 4.44
North Wildwood 0 0.00
Hoboken 4 15 19 4.79
Galloway Twp 1 1 5 23 30 4.63
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 2 Totals

1

0

2

13

54

70 4.70
Percent 1% 0% 3% 19% 77% 100%
3 I was satisfied with the mediation program and the way my
mediation was handled.
West Deptford 4 8 12 4.67
Lawrence Twp 5 3 8 4.38
North Wildwood 0 0.00
Hoboken 1 4 14 19 4.68
Galloway Twp 1 4 10 15 30 4.27
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 3 Totals 1 0 5 23 40 69 4.46
Percent 1% 0% 7% 33% 58% 100%

32


No.
Appendix Table 2: Defendant Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree

1

2

3

4

5

Totals

Average
4 The mediator was fair and impartial.
West Deptford 1 10 11 4.91
Lawrence Twp 1 5 3 9 4.00
North Wildwood 0 0.00
Hoboken 1 5 13 19 4.63
Galloway Twp 1 9 20 30 4.57
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 4 Totals
2

0

1

20

46

69 4.57
Percent 3% 0% 1% 29% 67% 100%

5
The mediator kept the discussion direct to the main issues of the
dispute during the mediation.

West Deptford 1 11 12 4.92
Lawrence Twp 1 5 3 9 4.22
North Wildwood 0 0.00
Hoboken 1 1 4 12 18 4.50
Galloway Twp 1 1 5 22 29 4.62
Fair Lawn 0 0.00
Fort Lee 0 0.00
1 1 3 15 48 68 4.59
Percent 1% 1% 4% 22% 72% 100%
Statement 5 Totals

6
The mediator appeared to be genuinely interested in the settlement
of my dispute.

West Deptford 1 11 12 4.92
Lawrence Twp 1 4 4 9 4.33
North Wildwood 0 0.00
Hoboken 1 3 14 18 4.72
Galloway Twp 1 1 3 2 22 29 4.48
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 6 Totals 1 1 5 10 51 68 4.60
Percent 1% 1% 7% 15% 75% 100%

33


No.
Appendix Table 2: Defendant Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree

1

2

3

4

5

Totals

Average

7 The mediator encouraged both parties to reach an agreement.
West Deptford 2 10 12 4.83
Lawrence Twp 5 4 9 4.44
North Wildwood 0 0.00
Hoboken 1 4 14 19 4.68
Galloway Twp 1 1 8 20 30 4.53
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 7 Totals 1 0 2 19 48 70 4.61
Percent 1% 0% 3% 27% 69% 100%
8 If your mediation resulted in a written agreement –
I was satisfied with the terms of the agreement.
West Deptford 1 11 12 4.92
Lawrence Twp 1 3 4 8 4.38
North Wildwood 0 0.00
Hoboken 2 4 13 19 4.58
Galloway Twp 1 11 16 28 4.46
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 8 Totals 1 0 3 19 44 67 4.57
Percent 1% 0% 4% 28% 66% 100%
9 If your mediation did not result in an agreement - I was satisfied that
the mediator did everything possible to bring about a settlement.
West Deptford 1 1 7 9 4.44
Lawrence Twp 1 3 1 5 4.00
North Wildwood 0 0.00
Hoboken 2 3 9 14 4.50
Galloway Twp 1 1 1 7 7 17 4.06
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 9 Totals 2 1 4 14 24 45 4.27
Percent 4% 2% 9% 31% 53% 100%

34


No.
Appendix Table 2: Defendant Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree

1

2

3

4

5

Totals

Average
10 If I become a party to a dispute in the future,
I am likely to want to try mediation again.

West Deptford 12 12 5.00
Lawrence Twp 1 5 3 9 4.22
North Wildwood 0 0.00
Hoboken 1 4 12 17 4.65
Galloway Twp 2 4 6 17 29 4.24
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 10 Totals 2 0 6 15 44 67 4.48
Percent 3% 0% 9% 22% 66% 100%

11 How many times did you come to court and/or mediation in this case?

once

twice

three

four

five
West Deptford 9 2 11
Lawrence Twp 8 1 9
North Wildwood 0
Hoboken 15 1 2 1 19
Galloway Twp 21 3 4 1 29
Fair Lawn 0
Fort Lee 0
Times Total 53 7 6 2 0 68
Percent 78% 10% 9% 3% 0% 100%

35


No.
Appendix Table 3: Complaining Witness Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average
1 The explanation of the mediation program that you
received before mediation was adequate.
West Deptford 8 7 15 4.47
Lawrence Twp 1 2 2 3 8 3.88
North Wildwood 0 0.00
Hoboken 3 4 12 19 4.47
Galloway Twp 1 2 15 25 43 4.47
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 1 Totals 1 1 7 29 47 85 4.41
Percent 1% 1% 8% 34% 55% 100%
2 The mediator was
pleasant and courteous.
West Deptford 2 3 10 15 4.53
Lawrence Twp 2 6 8 4.75
North Wildwood 0 0.00
Hoboken 1 1 17 19 4.79
Galloway Twp 1 9 31 41 4.73
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 2 Totals

0

1

3

15

64

83 4.71
Percent 0% 1% 4% 18% 77% 100%
3 I was satisfied with the mediation program and the way
my mediation was handled.
West Deptford 1 8 6 15 4.33
Lawrence Twp 1 1 3 3 8 4.00
North Wildwood 0 0.00
Hoboken 1 2 5 11 19 4.32
Galloway Twp 1 1 4 16 21 43 4.28
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 3 Totals 2 2 8 32 41 85 4.27
Percent 2% 2% 9% 38% 48% 100%

36


No.
Appendix Table 3: Complaining Witness Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average
4 The mediator was fair and impartial.
West Deptford 6 9 15 4.60
Lawrence Twp 2 2 4 8 4.25
North Wildwood 0 0.00
Hoboken 2 7 11 20 4.35
Galloway Twp 1 12 29 42 4.67
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 4 Totals 0 2 3 27 53 85 4.54
Percent 0% 2% 4% 32% 62% 100%
5 The mediator kept the discussion direct to the main
issues of the dispute during the mediation.
West Deptford 6 9 15 4.60
Lawrence Twp 1 4 3 8 4.25
North Wildwood 0 0.00
Hoboken 1 2 2 13 18 4.50
Galloway Twp 1 1 1 12 27 42 4.50
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement 5 Totals 1 2 4 24 52 83 4.49
Percent 1% 2% 5% 29% 63% 100%
6 The mediator appeared to be genuinely interested in
the settlement of my dispute.
West Deptford 6 9 15 4.60
Lawrence Twp 1 3 3 7 4.29
North Wildwood 0 0.00
Hoboken 1 2 5 11 19 4.32
Galloway Twp 1 5 8 28 42 4.48
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 6 Totals 2 0 8 22 51 83 4.45
Percent 2% 0% 10% 27% 61% 100%

37


No.
Appendix Table 3: Complaining Witness Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average

7 The mediator encouraged both parties to reach an agreement.

West Deptford 2 6 7 15 4.20
Lawrence Twp 5 3 8 4.38
North Wildwood 0 0.00
Hoboken 1 1 6 11 19 4.42
Galloway Twp 3 11 28 42 4.60
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 7 Totals 0 3 4 28 49 84 4.46
Percent 0% 4% 5% 33% 58% 100%

8
If your mediation resulted in a written agreement –
I was satisfied with the terms of the agreement.
West Deptford 2 5 6 13 4.31
Lawrence Twp 1 4 4 9 4.33
North Wildwood 0 0.00
Hoboken 3 2 6 7 18 3.94
Galloway Twp 1 1 14 21 37 4.46
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 8 Totals 1 3 6 29 38 77 4.30
Percent 1% 4% 8% 38% 49% 100%

9
If your mediation did not result in an agreement - I was satisfied that
the mediator did everything possible to bring about a settlement.
West Deptford 1 6 3 10 4.20
Lawrence Twp 1 2 1 4 4.00
North Wildwood 0 0.00
Hoboken 2 5 5 12 4.25
Galloway Twp 1 7 17 25 4.64
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 9 Totals 0 0 5 20 26 51 4.41
Percent 0% 0% 10% 39% 51% 100%

38


No.
Appendix Table 3: Complaining Witness Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average
10 If I become a party to a dispute in the future, I am likely to
want to try mediation again.
West Deptford 1 2 8 4 15 3.93
Lawrence Twp 1 4 1 2 8 3.50
North Wildwood 0 0.00
Hoboken 2 1 2 6 8 19 3.89
Galloway Twp 1 1 4 13 20 39 4.28
Fair Lawn 0 0 0 0 0 0 0.00
Fort Lee 0 0 0 0 0 0 0.00
Statement No. 10 Totals 4 3 12 28 34 81 4.05
Percent 5% 4% 15% 35% 42% 100%
11 How many times did you come to court and/or mediation in this case?
once

twice

three

four

five
West Deptford 12 2 14
Lawrence Twp 7 1 8
North Wildwood 0
Hoboken 12 1 3 1 1 18
Galloway Twp 23 6 7 1 1 38
Fair Lawn 0 0 0 0 0 0
Fort Lee 0 0 0 0 0 0
Times Total 54 10 10 2 2 78
Percent 69% 13% 13% 3% 3% 100%

39


No.
Appendix Table 4: Parties – Not Identified Surveys Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average
1 The explanation of the mediation program that you received before
mediation was adequate
West Deptford 1 1 6 8 4.25
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 3 4 3 11 3.73
Galloway Twp 1 4 7 11 23 4.22
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 1 Totals
2 1 8 12 23 46 4.15
Percent 4% 2% 17% 26% 50% 100%
2 The mediator was
pleasant and courteous.
West Deptford 1 6 7 4.43
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 3 6 10 4.40
Galloway Twp 3 6 14 23 4.48
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 2 Totals

1

1

3

10

29

44 4.48
Percent 2% 2% 7% 23% 66% 100%
3 I was satisfied with the mediation program and the way my
mediation was handled.
West Deptford 1 1 6 8 4.38
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 4 5 10 4.30
Galloway Twp 1 2 3 4 11 21 4.05
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 3 Totals 2 3 3 10 25 43 4.23
Percent 5% 7% 7% 23% 58% 100%

40


No.
Appendix Table 4: Parties – Not Identified Surveys Strongly
Disagree
Disagre
e
Neutral Agre
e
Strongly
Agree
1 2 3 4 5

Totals

Average
4 The mediator was fair and impartial.
West Deptford 1 3 4 8 4.13
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 4 5 10 4.30
Galloway Twp 3 7 13 23 4.43
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 4 Totals
1

1

3

15

25

45 4.38
Percent 2% 2% 7% 33% 56% 100%
5 The mediator kept the discussion direct to the main issues
of the dispute during the mediation.
West Deptford 1 3 4 8 4.13
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 6 4 11 4.27
Galloway Twp 3 9 12 24 4.38
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement 5 Totals 1 0 4 19 23 47 4.34
Percent 2% 0% 9% 40% 49% 100%
6 The mediator appeared to be genuinely interested in
the settlement of my dispute.
West Deptford 1 1 2 4 8 4.00
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 5 4 10 4.30
Galloway Twp 4 6 13 23 4.39
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 6 Totals 1 0 6 14 24 45 4.33
Percent 2% 0% 13% 31% 53% 100%


41

No.
Appendix Table 4: Parties – Not Identified Surveys Strongly
Disagree
Disagre
e
Neutral Agre
e
Strongly
Agree
1 2 3 4 5

Totals

Average
7 The mediator encouraged both parties to reach an agreement.
West Deptford 1 2 5 8 4.25
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 3 3 4 10 4.10
Galloway Twp 1 3 5 14 23 4.39
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 7 Totals 1 1 6 11 26 45 4.33
Percent 2% 2% 13% 24% 58% 100%
8 If your mediation resulted in a written agreement –
I was satisfied with the terms of the agreement.
West Deptford 1 1 6 8 4.38
Lawrence Twp 1 3 4 4.75
North Wildwood 0 0.00
Hoboken 1 4 4 9 4.33
Galloway Twp 1 3 6 11 21 4.24
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 8 Totals 2 0 4 12 24 42 4.33
Percent 5% 0% 10% 29% 57% 100%
9 If your mediation did not result in an agreement - I was satisfied that the
mediator did everything possible to bring about a settlement.
West Deptford 1 1 1 5 8 4.13
Lawrence Twp 2 2 5.00
North Wildwood 0 0.00
Hoboken 2 2 4 8 4.25
Galloway Twp 3 4 11 18 4.44
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 9 Totals 1 0 6 7 22 36 4.36
Percent 3% 0% 17% 19% 61% 100%

42


No.
Appendix Table 4: Parties – Not Identified Surveys Strongly
Disagree
Disagre
e
Neutral Agre
e
Strongly
Agree
1 2 3 4 5

Totals

Average

10
If I become a party to a dispute in the future, I am likely to
want to try mediation again.
West Deptford 1 1 6 8 4.38
Lawrence Twp 3 3 5.00
North Wildwood 0 0.00
Hoboken 1 1 2 5 9 4.22
Galloway Twp 1 4 5 12 22 4.23
Fair Lawn 0 0.00
Fort Lee 0 0.00
Statement No. 10 Totals 2 1 5 8 26 42 4.31
Percent 5% 2% 12% 19% 62% 100%

11 How many times did you come to court and/or mediation in this case?

once

twice

three

four

five
West Deptford 4 1 5
Lawrence Twp 2 2 4
North Wildwood 0
Hoboken 8 1 1 10
Galloway Twp 14 3 1 18
Fair Lawn 0
Fort Lee 0
Average Times Total 28 7 1 1 0 37
Percent 76% 19% 3% 3% 0% 100%


43


No.
Appendix Table 5: Judge and Court
Staff Surveys
Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average.
1 Presumptive mediation is an efficient
way to manage caseflow.
West Deptford
Lawrence Twp 4 1 5 3.40
North Wildwood 3 2 5 4.40
Hoboken 3 2 5 4.40
Galloway Twp 2 2 4.00
Fair Lawn 1 1 2 4.00
Fort Lee 1 1 4.00
Totals 0 0 5 9 6 20 4.05
Percent 0% 0% 25% 45% 30% 100%
2 As a result of presumptive mediation,
there was more paperwork.
West Deptford 1 3 6 2 2 14 3.07
Lawrence Twp 1 2 2 5 4.20
North Wildwood 3 2 5 4.40
Hoboken 4 1 5 2.60
Galloway Twp 1 1 2 4.00
Fair Lawn 1 1 2 2.50
Fort Lee
Totals 2 7 8 8 8 33 3.52
Percent 6% 21% 25% 26% 25% 100%
3 There was very few or no problems
assigning mediators to cases.
West Deptford 1 0 1 1 10 13 4.46
Lawrence Twp 1 3 1 5 3.80
North Wildwood 2 1 3 4.33
Hoboken 2 3 5 4.60
Galloway Twp 2 2 3.00
Fair Lawn 2 2 5.00
Fort Lee 1 1 5.00
Totals 1 1 3 8 18 31 4.32
Percent 3% 3% 10% 26% 58% 100%

44

No.
Appendix Table 5: Judge and Court
Staff Surveys
Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average.
4 There were very few or no problems
with the parties.
West Deptford 0 0 3 6 2 11 3.91
Lawrence Twp 1 3 1 5 3.00
North Wildwood 5 5 4.00
Hoboken 5 5 4.00
Galloway Twp 2 2 3.00
Fair Lawn 1 1 2 4.00
Fort Lee 1 1 4.00
Totals 1 0 9 17 4 31 3.74
Percent 3% 0% 29% 55% 13% 100%
5 The parties seemed satisfied with
mediation.
West Deptford 0 0 0 10 2 12 4.17
Lawrence Twp 1 3 1 5 4.00
North Wildwood 4 1 5 4.20
Hoboken 4 1 5 4.20
Galloway Twp 1 1 3.00
Fair Lawn 1 1 2 4.50
Fort Lee 1 1 4.00
Totals 0 0 2 23 6 31 4.13
Percent 0% 0% 6% 74% 19% 100%
6 The pilot project caused very few or no
scheduling problems.
West Deptford 1 0 0 10 3 14 4.00
Lawrence Twp 1 3 1 5 4.00
North Wildwood 2 3 5 4.60
Hoboken 3 2 5 4.40
Galloway Twp 1 1 3.00
Fair Lawn 1 1 5.00
Fort Lee 1 1 2 4.50
Totals 1 0 2 19 11 33 4.18
Percent 3% 0% 6% 58% 33% 100%

45

No.
Appendix Table 5: Judge and Court
Staff Surveys
Strongly
Disagree
Disagree Neutral Agree Strongly
Agree
1 2 3 4 5

Totals

Average.
7 Presumptive mediation is an efficient
way to handle minor disputes.
West Deptford 1 0 3 3 7 14 4.07
Lawrence Twp 2 2 1 5 3.80
North Wildwood 2 3 5 4.60
Hoboken 1 4 5 4.80
Galloway Twp 1 1 2 3.50
Fair Lawn 1 1 2 4.00
Fort Lee 1 1 3.00
Totals 1 0 8 9 16 34 4.15
Percent 3% 0% 24% 26% 47% 100%

46

No. Appendix Table 6:
Mediator Surveys
Strongly
Disagree Disagree Neutral Agree
Strongly
Agree TOTALS
1 Mediation was appropriate for the
types of cases that you received.
West Deptford 0
Lawrence Twp 2 4 6
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 1 Totals 0 0 0 2 5 7
Percent 0% 0% 0% 29% 71% 100%
2 The court's procedures were efficient
in getting the cases to you.
West Deptford 0
Lawrence Twp 5 5
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 2 Totals 0 0 1 0 5 6
Percent 0% 0% 17% 0% 83% 100%
3 The presumptive mediation pilot
project created substantially more
paperwork for you.
West Deptford 0
Lawrence Twp 1 2 1 1 5
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 3 Totals 1 3 1 1 0 6
Percent 17% 50% 17% 17% 0% 100%

47
No. Appendix Table 6:
Mediator Surveys
Strongly
Disagree Disagree Neutral Agree
Strongly
Agree TOTALS
4 The scheduling of the mediation
sessions was done effectively.
West Deptford 0
Lawrence Twp 2 3 5
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 4 Totals 0 0 1 2 3 6
Percent 0% 0% 17% 33% 50% 100%
5 The parties were more familiar with
the mediation process as a result of
the written materials given to them
West Deptford 0
Lawrence Twp 3 2 5
North Wildwood 0
Hoboken 1 1 2
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 5 Totals 0 0 4 3 0 7
Percent 0% 0% 57% 43% 0% 100%
6 I recommend that presumptive
mediation should be used statewide.
West Deptford 0
Lawrence Twp 1 1 3 5
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
Statement No. 6 Totals 0 1 0 1 4 6
Percent 0% 17% 0% 17% 67% 100%

48
No. Appendix Table 6:
Mediator Surveys
Strongly
Disagree Disagree Neutral Agree
Strongly
Agree TOTALS
7 I was satisfied with the presumptive
mediation pilot program.
West Deptford
Lawrence Twp 1 1 3 5
North Wildwood 0
Hoboken 1 1
Galloway Twp 0
Fair Lawn 0
Fort Lee 0
0
Statement No. 7 Totals 0 1 0 1 4 6
Percent 0% 17% 0% 17% 67% 100%

49


Appendix Two

50