2A:23C-4 Privilege against disclosure; admissibility; discovery.
4.Privilege against Disclosure; Admissibility; Discovery.
a.Except as otherwise provided in section 6 of P.L. 2004, c.157 (C.2A:23C-6), a mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5 of P.L. 2004, c.157 (C.2A:23C-5).
b.In a proceeding, the following privileges shall apply:
(1)a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2)a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
(3)a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
c.Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
2A:23C-5 Waiver and preclusion of privilege.
5.Waiver and Preclusion of Privilege.
a.A privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1)in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2)in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
b.A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
c.A person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4).
2A:23C-6 Exceptions to privilege.
6.Exceptions to Privilege.
a.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) for a mediation communication that is:
(1)in an agreement evidenced by a record signed by all parties to the agreement;
(2)made during a session of a mediation that is open, or is required by law to be open, to the public;
(3)a threat or statement of a plan to inflict bodily injury or commit a crime;
(4)intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(5)sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;
(6)except as otherwise provided in subsection c., sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(7)sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Children and Families is a party, unless the Division of Youth and Family Services participates in the mediation.
b.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
(1)a court proceeding involving a crime as defined in the "New Jersey Code of Criminal Justice," N.J.S. 2C:1-1 et seq.; or
(2) except as otherwise provided in subsection c., a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
c.A mediator may not be compelled to provide evidence of a mediation communication referred to in paragraph (6) of subsection a. or paragraph (2) of subsection b.
d.If a mediation communication is not privileged under subsection a. or b., only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection a. or b. does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.
L.2004, c.157, s.6; amended 2006, c.47, s.22.
2A:23C-7 Prohibited mediator reports.
7.Prohibited mediator reports.
a.Except as required in subsection b., a mediator may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.
b.A mediator may disclose:
(1)whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or
(2)a mediation communication as permitted under section 6 of P.L.2004, c.157 (C.2A:23C-6);
c.A communication made in violation of subsection a. may not be considered by a court, administrative agency, or arbitrator.
Unless made during a session of a mediation which is open, or is required by law to be open, to the public, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.
2A:23C-9 Mediator's disclosure of conflicts of interest; background.
9.Mediator's Disclosure of Conflicts of Interest; Background.
a.Before accepting a mediation, an individual who is requested to serve as a mediator shall:
(1)make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and
(2)disclose any such known fact to the mediation parties as soon as is practicable before accepting a mediation.
b.If a mediator learns any fact described in paragraph (1) of subsection a. after accepting a mediation, the mediator shall disclose it as soon as is practicable.
c.At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator's qualifications to mediate a dispute.
d.A person who violates subsection a., b., or g. shall be precluded by the violation from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary to prove the violation.
e.Subsections a, b., c., and g. do not apply to a judge of any court of this State acting as a mediator.
f.This act does not require that a mediator have a special qualification by background or profession.
g.A mediator shall be impartial, notwithstanding disclosure of the facts required in subsections a. and b.
2A:23C-10 Participation in mediation.
10. Participation in Mediation.
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.
2A:23C-11 Relation to Electronic Signatures in Global and National Commerce Act.
11. Relation to Electronic Signatures in Global and National Commerce Act.
This act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. s.7001 et seq., but this act does not modify, limit, or supersede s.101(c) of that act or authorize electronic delivery of any of the notices described in s.103(b) of that act.
2A:23C-12 Uniformity of application and construction.
12. Uniformity of application and construction.
In applying and construing this act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
2A:23C-13 Severability clause.
13. Severability clause.
If any provision of P.L.2004, c.157 (C.2A:23C-1 et seq.) or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.