The UMA also provides that a privilege does not exist 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:
Privilege and Constitutional Rights
In State v. Williams[9], the New Jersey Supreme Court was faced with the clash between the mediator privilege and the defendant’s constitutional rights. The parties had attended mediation at the municipal court level. The matter did not settle and an indictment for third degree assault, possession of a weapon and fourth degree unlawful possession of a weapon. Williams alleged that at the time of the mediation the alleged victim admitted he had first picked up a shovel, supporting his claim of self-defense. The case came before the Supreme Court solely on the issue of the admissibility of the mediator’s testimony. The defendant argued that the R. 1:40-4(c) prohibition against a mediator testifying should be relaxed in order “to secure a just determination…and fairness in administration” pursuant to R. 1:1-2. The court balanced the Fourteenth Amendment guarantee that every criminal defendant is entitled to a fair trial, including the right to cross examine and impeach the state’s witnesses as well as the defendant’s right to cross examine and impeach the state’s witnesses against the mediation privilege.
The Supreme Court noted the language in the UMA that the privilege yields if “there is a need for the evidence that substantially outweighs the intent in protecting confidentiality and the proponent of the evidence shows the evidence is not otherwise available”.[10] The court found there was a need for the evidence. However, the court determined the interest in maintaining confidentially outweighed the defendant’s interests. The court discussed the need for confidentiality in the mediation process and emphasized that mediation is not conducted under oath. It does not follow the rules of evidence, nor is mediation limited to admissible facts.
The Supreme Court also refers to New Jersey Rule of Evidence 408 which provides statements made by parties in settlement negotiations are generally inadmissible in subsequent proceedings. The court determined the mediator’s testimony was not sufficiently probative. It also concluded that the defendant did not demonstrate that the victim’s statement that he picked up a shovel was “not otherwise available” since there was other evidence such as the police report used in cross examination as well as the defendant’s own testimony.
Privilege and Divorce
In Lehr v. Afflitto,[11] the husband alleged a settlement had not been reached in mediation. The trial court conducted a Harrington hearing[12] after a remand from the Appellate Division. During the Harrington hearing, the mediator utilized by the parties was called to testify on behalf of the husband. Upon appeal the court found that the trial judge had erred in permitting the mediator to testify.[13] The court also found that the testimony did not support the trial court’s conclusion that the parties had reached a settlement and remanded the matter for trial. [14]
The trial court stated that any question asked of the mediator and any responses are deemed to be a waiver by the husband of any objections to matters at mediation being brought into court.[15]
The Appellate Court found that the mediation confidentiality provision had not been waived, noting that the plaintiff’s counsel cited to R. 1:40-4(c) at the onset of the hearing.[16] The court found both defense counsel’s act of subpoenaing the mediator and the procedures employed by the court troubling, noting that the issue of confidentiality is of great public and systematic importance.
The court relied on R. 1:40-4(c) language that no mediator may participate in any subsequent hearing or trial of a mediated matter or appear as witness or counsel for any person in the same or related matter.[17]
The court referred to the Williams case determining that the Courts have “long-recognized that public policy favors settlement of legal disputes.”[18] The court emphasized the importance of confidentiality in the mediation process and noted the risks of allowing mediation as a fact-finding process. Specifically, the court stressed, “Underpinning the success of mediation in our court system is the assurance that what is said and done during the mediation process will remain confidential. The mediation process was not designed to create another layer of litigation in an already over-burdened system.”[19]
In Addesa v. Addesa,[20] the wife moved to set aside a property settlement agreement reached during mediation. The first trial judge set aside the property settlement agreement after a hearing in which the mediator was called as a witness. The Appellate Court found that the portions of the lower court’s order permitting the mediator to testify and allowing the inspection of his file were inappropriate.[21] The court also emphasized that in addition, the mediation agreement of the parties contained language stating the mediator and his records would not be subject to subpoenas.[22]
The Disclosure of Privileged Communications by an Adversary
In Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242 (2013) the parties agreed to non-binding mediation. The mortgagor moved to enforce the purported oral agreement reached during mediation and in doing so, supported its application with a certification of the mediator and counsel including privileged communications.[23] Instead of moving to bar the privileged statements, the plaintiff litigated the validity of the agreement and further disclosed additional privileged communications.[24] The Court discussed two exceptions to the privilege which were pertinent in this matter. The first, a signed writing which “allows a settlement agreement reduced to writing and properly adopted by the parties to be admitted into evidence to prove the validity of the agreement.”[25] The second exception discussed by the Court was waiver and the need for waivers of privilege to be express and deliberate in order to avoid an inadvertent mistaken disclosure.[26] The Court affirmed the Appellate Division’s finding of the existence of an oral settlement agreement, but clarified that “going forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable.”[27] The Supreme Court also cautioned and reminded litigants that, “a party seeking the protection of a privilege must timely invoke the privilege. A party that not only expressly waives the mediation-communication privilege, but also discloses privileged communications, cannot later complain that it has lost the benefit of the privilege it has breached.”[28]
Penalties and Consequences for Wrongful Disclosure
There is no specific penalty outlined by statue or court rule that addresses non-exempt disclosures. The only time a consequence is mentioned is in the provision that states if one violates the privilege the adversary can disclose information to counter the disclosed information.
When faced with an inadvertent disclosure, courts generally remedy the issue by striking the privileged communication from the record. However, the fact remains that the striking of the privileged communication does not unring the bell. Once a communication is made it cannot be unheard or forgotten. While counsel may be familiar with a court’s ability to ignore something it has read, litigants are not at all convinced that the court can “unsee” what has been placed before it.
Final Thoughts and Takeaways
With the prevalence of Alternative Dispute Resolution on the rise in the wake of the COVID-19 epidemic and judicial vacancy crisis, how do practitioners ensure that the communications made during mediation truly remain protected? First, it would be best practice to have a signed mediation agreement signed by the parties, third parties and the mediator that clearly reflects that all mediation communications are confidential. The privilege applies not just to the mediation itself, but to all statements made for the purpose of considering, conducting, participating in, initiating or reconvening a mediation. Second, restate the rules before each mediation session to make sure everyone has the same understanding about the confidentiality of the meetings.
[1] N.J.S.A. 2A:23C-1 to -13
[3] See N.J.S.A. 2A:23C-2; N.J.S.A. 2A:23C-4
[9] 184 N.J. 432 (2005)
[10] The UMA was not in effect when the trial court initially excluded the mediator’s testimony
[11] 382 N.J. Super. 376, (2006)
[12] Harrington v. Harrington, 281 N.J. Super. 39 (1995))
[13] Lehr v. Afflitto, 382 N.J. Super. 376, 395 (App. Div. 2006)
[14] Lehr v. Afflitto, 382 N.J. Super. 376, 395(App. Div. 2006)
[15] Lehr v. Afflitto, 382 N.J. Super. 376, 387 (App. Div. 2006)
[16] Lehr v. Afflitto, 382 N.J. Super. 376, 391(App. Div. 2006)
[17] The UMA was not in effect when the Harrington hearing was held by trial court in this matter nor when this matter was decided
[18] Lehr v. Afflitto, 382 N.J. Super. 376, 394, 889 A.2d 462, 474 (App. Div. 2006)
[19] Lehr v. Afflitto, 382 N.J. Super. 376, 391, 889 A.2d 462, 472 (App. Div. 2006)
[20] 392 N.J. Super. 58 (N.J. Super. 2007)
[21] Addesa v. Addesa, 392 N.J. Super. 58, 65, 919 A.2d 885, 889 (App. Div. 2007)
[22] The court noted that the UMA had not been enacted when the parties signed the agreement, but noted that if it had been passed earlier, it would control if it had been in effect.
[23] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 245 (2013)
[24] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 245 (2013)
[25] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 256 (2013)
[26] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 257 (2013)
[27] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 263 (2013)
[28] Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 263, (2013)