Court Rule 1:40-4. Mediation -- General Rules

Court Rule 1:40-4. Mediation -- General Rules

• (a) Referral to Mediation. Except as otherwise provided by these rules, a Superior Court or Municipal Court judge may require the parties to attend a mediation session at any time following the filing of a complaint.

• (b) Compensation and Payment of Mediators.

  (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) Evidentiary Privilege. A mediation communication is not subject to discovery or admissible in evidence in any subsequent proceeding except as provided by the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13. A party may, however, establish the substance of the mediation communication in any such proceeding by independent evidence.

• (d) Confidentiality. Unless the participants in a mediation agree otherwise or to the extent disclosure is permitted by this rule, no party, mediator, or other participant in a mediation may disclose any mediation communication to anyone who was not a participant in the mediation. A mediator may disclose a mediation communication to prevent harm to others to the extent such mediation communication would be admissible in a court proceeding. A mediator has the duty to disclose to a proper authority information obtained at a mediation session if required by law or if the mediator has a reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm. No mediator may appear as counsel for any person in the same or any related matter. A lawyer representing a client at a mediation session shall be governed by the provisions of RPC 1.6.

• (e) Limitations on Service as a Mediator.

• • (1) Mediators shall be qualified and trained in accordance with the provisions of Rule 1:40-12.

  • (2) No one holding a public office or position or any candidate for a public office or position shall serve as a court-approved mediator in a matter directly or indirectly involving the governmental entity in which that individual serves or is seeking to serve.

  • (3) The approval of the Assignment Judge is required for service as a mediator by any of the following: (A) police or other law enforcement officers employed by the State or any local unit of government; (B) employees of any court; or (C) government officials or employees whose duties involve regular contact with the court in which they serve.

  • (4) The Assignment Judge shall also have the discretion to require prior review and approval of the Supreme Court of prospective mediators whose employment or position appears to the Assignment Judge to require such review and approval.

• (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) After entry of the order of referral in an economic mediation, if the court is advised by the mediator, counsel, or one of the parties that a conflict of interest exists, the court shall reassign the case to a different mediator. The parties shall have the opportunity to select a replacement mediator from the roster or the court may appoint one. An amended order of referral shall then be prepared and provided to the parties. All data shall be entered into the Family Automated Case Tracking System (FACTS).

• (g) Conduct of Mediation Proceedings. Mediation proceedings shall commence with an opening statement by the mediator describing the purpose and procedures of the process. Mediators may require the participation of persons with negotiating authority. An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of representation or participation given before the mediation may be rescinded. Non-party witnesses may be heard in the discretion of the mediator, and other non-parties shall be permitted to attend only with the consent of the parties and the mediator. Multiple sessions may be scheduled.

  Attorneys and parties have an obligation to participate in the mediation process in good faith in accordance with program guidelines.

• (h) Termination of Mediation.

• • (1) The mediator or a participant may terminate the session if (A) there is an imbalance of power between the parties that the mediator cannot overcome, (B) a party challenges the impartiality of the mediator, (C) there is abusive behavior that the mediator cannot control, or (D) a party continuously resists the mediation process or the mediator.

  • (2) The mediator shall terminate the session if (A) there is a failure of communication that seriously impedes effective discussion, (B) the mediator believes a party is under the influence of drugs or alcohol, or (C) the mediator believes continued mediation is inappropriate or inadvisable for any reason.

• (i) Final Disposition. If the mediation results in the parties' total or partial agreement, it shall be reduced to writing and a copy thereof furnished to each party. The agreement need not be filed with the court, but if formal proceedings have been stayed pending mediation, the mediator shall report to the court whether agreement has been reached. If an agreement is not reached, the matter shall be referred back to court for formal disposition.