You can read the full article here.

Thornton counterclaimed alleging construction deficiencies.

Discovery took place and trial was scheduled more than one year after the complaint was filed.  By then, defendant had obtained new counsel, trial was adjourned and the court sent the matter to arbitration after defendant’s new attorney raised for the first time an arbitration clause in the original contract.  Plaintiff alleged that defendant had waived its right to arbitration by participating in the litigation for over one year.  The court examined the competing interests between, on the one hand, favoring commercial arbitration as a speedy and inexpensive alternative to litigation, particularly in construction contract disputes, and on the other hand, whether the active and prolonged litigation resulted in a waiver of the right to compel arbitration.

The court noted an earlier decision where a trial judge’s compelling arbitration nearly five years after the original complaint, was rejected.

After wrestling with the issue of when a waiver has occurred, the court ruled in favor of allowing the matter to proceed to arbitration.

The court relied upon “prejudice” as the “touchstone” for determining when a waiver has occurred.  The court was influenced by the perceived lack of prejudice to plaintiff given that much of the same information generated through discovery would be admissible in the arbitration.  The court was also persuaded by the assumed knowledge by plaintiff that by filing in court, plaintiff was ignoring the mandatory contractual arbitration provision.  Finding neither side blameless, the court directed the matter to arbitration.

The court recognized this was a difficult choice.  Parties litigating in this area should be mindful that there are federal cases which hold otherwise.  As always, the ultimate outcome was somewhat case specific and fact sensitive.

However, evidence or information that is otherwise admissible or discoverable does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

The parties to a mediation may expressly waive the privilege, and in the case of the privilege of a mediator, it may be expressly waived by the mediator.

Among the exceptions, where the privilege does not apply are the following:

1.    Communications made during a public mediation;
2.    A threat or statement of a plan to inflict bodily injury;
3.    Communications sought or offered to prove or disprove a claim or complaint against a mediator arising out of a mediation;
4.    Communications offered to prove or disprove a claim or complaint of professional malpractice; and
5.    Communications sought or offered to prove or disprove child abuse or neglect in a proceeding involving DYFS, unless DYFS participates in the mediation.

The privilege does not exist where a court, administrative agency or arbitrator finds that the party seeking discovery where 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 the that the mediation communication is sought or offered in a proceeding involving a crime or to avoid liability on a contract arising out of the mediation.

A mediator may not make a report or recommendation regarding a mediation to a court.

The foregoing evidence rule expands upon New Jersey Court Rule 1:40-4 “Mediation - General Rules” which include a “confidentiality” provision.  It mirrors several provisions within the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 to 13.  The evidence rule reaffirms the court’s intent to foster uninhibited communication during mediation, so as to further the goal of creating an environment wherein the parties will discuss freely their respective positions creating greater opportunities for settlements to occur.

First, as soon as I am retained I attempt to obtain as much information as possible.  I immediately request copies of all the pleadings and all briefs which have been filed in support of motions.  I then schedule a telephonic conference to uncover outstanding discovery issues.  At the telephonic conference I set a firm date for the submission of confidential mediation statements, and analyze them as soon as received.  After analyzing all this material I make an initial decision whether to handle the mediation in a facilitative style or an evaluative style or a combination of both.

Using a purely facilitative style a mediator tries to assist the parties in identifying and exploring interests, motivations, concerns, common ground and possible resolutions.  But, a mediator using a purely facilitative style does not draw conclusions for the parties.  The mediator does not offer opinions regarding legal positions or potential litigation outcomes.  Unfortunately, a purely evaluative style cannot result in a successful mediation when there are outstanding legal issues which have not been considered by one or more parties in making a litigation risk and cost analysis.

Instead of using a purely facilitative style I gently pursue an evaluative style.  In an evaluative style a mediator is likely to offer opinions on the strengths and weakness of the case.  But, I approach this evaluative style very gently.  After I discover a serious unresolved legal issue I generally write counsel and tell them that I have discovered a case or a line of cases which may affect the mediation process and ask for counsels’ opinions.  Or, I may request that counsel provide me with case law that supports an important legal position.  However, only when the parties to the mediation process believe that my opinion is necessary will I provide an opinion.

I try by using a modified facilitative approach to encourage the parties to consider the subject of unresolved legal issues and make realistic litigation risk and cost analyses before the day of mediation arrives.  Settlement is then much more likely.  And, SETTLEMENT is what I seek.

The new procedure is slightly more complex than the standard default divorce. In a “default” divorce, one spouse would file the complaint and serve the complaint on the other spouse. If the second spouse did not respond to the complaint within the appropriate statutory time limit, the filing spouse could request that the court schedule a hearing and enter a divorce judgment by default.

The “on the papers” process as modified starts off the same way. One party files the complaint, and after the appropriate statutory waiting period has elapsed, the filing party requests that the court enter a default judgment. A default hearing is scheduled. However, because the parties have executed a property settlement agreement, they are able to get a divorce without ever appearing in Court.
The parties must forward to the Court, prior to the default hearing the following documentation:

1. Verified Complaint
2. Proof of service of defendant
3. In adultery cases, notice to correspondent and proof of service, which shall include that the correspondent has not moved to intervene or otherwise respond to the notice.
4. Request for default and proof that such default was served on the defendant
5. Affidavit of non military service
6. Affidavit of Insurance
7. Plaintiff’s sworn statement in support of request of judgment (see below)
8. An original and two copies of the Proposed Final Judgment of Divorce,
indicating that the matter was heard on the papers submitted and that the court made no finding on the merits
9. Child support guidelines worksheet, and if a deviation from the guidelines, a statement of reasons for the deviation
10. Written statement required by the probation department
11. A stamped, addressed return envelope

Appropriate proofs must be submitted to establish the plaintiff’s right to the relief requested. Unless the following are contained in the complaint, such a request should be in the form of a sworn statement (affidavit or certification), captioned “Certification in Support of the Request for Judgment” (or a similar title), and should:

1. Include a statement identifying all prior and pending proceedings in this or any other jurisdiction. The statement must indicate the caption, docket number and a brief indication of the status. If there are no other proceedings, the statement must certify that there are no other pending matters between the parties.
2. Certify that neither party is on public assistance, or if so, the nature of the assistance being received, the amount of the assistance for plaintiff and children, if any.
3. If incorporation of a PSA is requested, state the agreement was entered into voluntarily and freely and without coercion; that it resolves all the issues between the parties; that plaintiff considers it to be fair and equitable under all the circumstances; that plaintiff waives a right to trial and that plaintiff is satisfied with the legal services provided, if any, and a request to incorporate the Agreement into the Final Judgment of Divorce.
4. In cases where permanent alimony is a relief requested, or where the PSA contains a provision for permanent alimony, include a “Marital Lifestyle Statement” consistent with Crews v. Crews, 164 NJ 11 (2000), and a CIS which is less than one year old.
5. State that plaintiff is aware that s/he is waiving the right to have the judge decide these issues.
If Plaintiff requests the continuation of prior final orders, the complaint or certification must:
1. include copies of the orders.
2. identify the orders in the body of the certification.
3. confirm there is no other property or debt to be distributed.
4. confirm that there are no other outstanding issues between the parties.
5. confirm that plaintiff is aware that s/he is waiving the right to have the judge decide these issues.
6. recite that plaintiff understands that all prior orders not specifically referenced in the Final Judgment will be vacated upon the entering of the final judgment; except that no Restraining Order entered under the Prevention of Domestic Violence Act shall be vacated by the entry of a Judgment of Divorce.
7. state whether or not either party seeks to continue a restraining order previously entered under the Prevention of Domestic Violence Act.

If either spouse is requesting a name change, the complaint or certification must confirm that the party qualifies for a name change and is not changing their name to avoid creditors or criminal prosecution.

Once the staff has confirmed that all the above is included in the file, the file will be forwarded to a Judge to enter the Final Judgment of Divorce.

In the case of Michael S. Kimm v. Blisset, LLC., et als., in an opinion decided on August 28, 2006, the Appellate Division of the Superior Court of New Jersey ( Docket No. A-0965-04T2)  dealt with issues concerning the scope of an arbitrator's powers.    In the opinion, the Court drew distinctions between:  1) fee disputes between attorneys and clients; 2) arbitrations in Court annexed proceedings; and 3) arbitrations held pursuant to private agreements.  In addition, the Court focused on the meaning of the recently enacted  New Jersey Arbitration Act, N.J.S.A. 2 A: 23 B-1 to 32 as it relates to the powers of an arbitrator.   

The Court noted that, at its heart, arbitration is a creature of contract.  It is a favored remedy and arbitration agreements are liberally recognized.   It is state contract law principles that generally govern whether a valid agreement to arbitrate exists.

An arbitrator's powers is generally limited by the agreement of the parties.  The Court therefore noted that where only one of the parties believes that the arbitrator was empowered to act, and there was no evidence of an actual agreement, the arbitrator has no authority to act at all.    If the parties have not agreed in advance, the parties cannot force an arbitrator to give reasons for the award or to write a decision  explaining  his or her view of the facts.

In New Jersey, agreements to arbitrate made on or after January 1, 2003, are governed by the revised New Jersey Arbitration Act.  N.J.S.A.  2 A: 23B - 3a.  This revised Act is based largely on the Uniform Arbitration Act of 2000, see Assembly Judiciary Committee Statement on Senate Bill No. 514, L. 2003 c.95, and codified at N.J.S.A. 2A:23B-1 to -32.  This statute replaces the earlier version of the Arbitration Act, see N.J.S.A. 2A: 24 - 1 to -11.

The earlier statute required a written contract or a written "agreement to submit" to arbitration, in order for a party to be required to proceed to arbitration.    The revised statute, by comparison, only requires a "record", which presumably might fall short of a formal, contractual writing.  In addition, under the prior statute, an arbitrator's award had to be reduced to a judgment by a Court in order to be enforceable and the Court would have the ability to vacate, modify or correct the arbitrator's award .  

Under the new statute, the grounds upon which a Court may vacate an award have been expanded and the new statute also empowers the Court to correct or modify an award. The earlier statute gave the Court the authority to vacate an arbitrator's award if the arbitrator "so imperfectly executed (his) powers that a mutual, final and definite award" was not made.  The revised act specifically excludes an attack on an award, either by way of application to the arbitrator or the Court, on the grounds of imperfection, if the claim of imperfection is addressed to the merits of the award.  While an arbitrator may "clarify" the award, the arbitrator may not change his or her mind or reconsider the decision, in the guise of clarification.

Parties intending to have their disputes completely  resolved by arbitration should take care that any agreements they enter into deal clearly and concisely with the issue of what is to be arbitrated and how the arbitration is to be handled and be aware of the provisions of the New Jersey Arbitration Act.

The article discusses the growing trend of divorce mediation as opposed to traditional litigation.  You can read the article here.

Under Model Rule 4.1, a lawyer representing a client in general negotiations outside of the mediation process may not make a false statement of material fact to a third person. However, statements that are considered to be negotiation "puffing", or statements regarding a party's negotiating goals are not considered as false statements of material facts within the meaning of the Model Rules when dealing with general negotiations. The simple example given is where an attorney understates the willingness of a client to make concessions to resolve a dispute. Another example is where a party may exaggerate or emphasize the strengths or minimize the weakness of a factual or legal position. These remarks have been viewed as statements as to which a party would not ordinarily be expected to justifiably rely and are distinguished from a false statement of material fact.

There are obviously two different sides to the issue. In the context of a mediation, it has been argued that lawyers should be held to a more exacting standard of truthfulness because a neutral is involved. The other side asserts that less attention need be paid to the accuracy of information being communicated in a mediation as consensual deception is intrinsic to the process. The issue of "truthfulness in negotiations" also raises the question of whether a lawyer can accept a result that is unconscionably unfair, when it is to the benefit of the lawyer's own client. The other side takes the position that deception is inherent in the negotiation process and that an advocate should take advantage of every opportunity to advance the cause of the client.

In the Opinion, the Committee found that the ethical standard for negotiating in or out of the mediation process are the same. Lawyers are not held to a different or higher standard in a mediation because of the consensual nature of mediation. The Model Rules do not require a higher standard of truthfulness in any particular negotiating context. The Committee ruled that a lawyer representing a party may not make a false statement of material fact to a third person but may make statements regarding negotiating goals or willingness to compromise. For example, even though a client's Board of Directors has authorized a higher settlement figure, a lawyer may state in a negotiation that the client does not wish to settle for more than $50. However, it would not be permissible for the lawyer to state that the Board of Directors had formally disapproved any settlement in excess of $50., when authority had been in fact been granted to settle for a higher figure.

Technorati Tags: New Jersey : Alternative Dispute Resolution : Mediation

By way of background, this proposal provides that an invoice is automatically deemed approved and certified by an owner 10 days after the owner receives it, unless the owner disputes the amount in writing. It then requires the owner to make full payment to the contractor not more than 20 calendar days after the billing date specified in the contract. According to this proposal, all disputes regarding payment are submitted to binding arbitration.

This proposal was introduced by Senator Sweeney (D-3) in March, released from the Senate Labor Committee, and forwarded to the Senate Budget and Appropriations Committee for further review. The Assembly companion measure was introduced by Assemblyman Caraballo (D-29) earlier this month and forwarded to the Assembly Labor Committee for review.

Technorati Tags: New Jersey : Real Estate : Legislation : Prompt Pay : Contractor

As reported in The Washington Business Review, the Marty and Dorothy Silverman Foundation ("Foundation") is seeking payment of nearly $25 million for 31 acres of property from the University Heights Association ("UHA") in Albany, N.Y. The UHA is a consortium of the Albany Medical Center, Albany Law School, Albany College of Pharmacy and The Sage College's Albany campus, and is looking to improve the inventory of buildings on the four campuses as well as create a medical research hub and improve the surrounding neighborhood. The UHA contends that the $25 million in dispute were not loans that needed to be repaid and that the Foundation intended to forgive the payments. Foundation lawyers indicate that the UHA filed tax returns and financial statements in which it listed the payments as loans and that the loans are to be repaid.

The parties have been trying to come to a meeting of the minds that is acceptable to everybody, without success, for over three years.

After the filing of two lawsuits by the Foundation, the UHA attempted to seek Chapter 11 bankruptcy protection in a defensive move to protect association assets, but a Federal Bankruptcy Court Judge dismissed the filing as premature. State Supreme Court Justice Karla Moskowitz has ordered the two sides to try to work out their differences through the Alternative Dispute Resolution program in Manhattan.

While the parties are somewhat skeptical that mediation can help settle this longstanding dispute, both sides will give it a good faith try. The UHA indicated that the Chapter 11 could be refiled, depending on the outcome of mediation.

The Court will pick a mediator who is acceptable to both sides. The mediation process, which is anticipated to take between thirty and forty-five days, is non-binding.

It will be interesting to see if the mediation process can help these parties resolve their differences and avoid a costly fight played out in the courts.

This week's New Jersey Legal Update is presented by Scott Unger, a member of the Firm's Litigation group.

You can download the New Jersey Legal Update Podcast # 34 here.(9.6MB)

Technorati Tags: New Jersey : Podcast : Arbitration : Contract

A mediated settlement will be of obvious benefit to all involved since it will allow the town and the company to avoid a costly litigation battle. During last October's financial town meeting, Blackstone voters, acting on the request of officials, appropriated $50,000 as a down payment on the legal costs of taking a stand against ANP in court. This year, officials are asking for an even heftier fortification of the war chest -- $250,000 -- to carry on the courtroom battle, if necessary.

Arguing that softening market conditions for electricity have lessened the value of its holdings, ANP wants the town to reduce its assessments, thereby lowering the company's tax bills. The town calculates ANP's taxes in two ways: Like any property owner, ANP gets a tax bills for its real estate and land. When the company built its plant in the late 1990s, it also negotiated a plan known as a Payment in Lieu of Taxes, or PILOT, fixing assessments on turbines and other business equipment for 20 years, through 2019.

The two methods resulted in a combined assessment of roughly $2.87 million on the company this year. But the company, as it did last year, protested the assessment in court and paid only a portion of it -- about $1.94 million. The payment represents 100 percent of the company's obligations on real estate, but only about two-thirds of what the town maintains it owes under the PILOT. If the trend continued for the life of the agreement, the town would stand to lose about $10 million in revenue.

This is another example of the beneficial role mediated resolutions can play in business litigation.

Technorati Tags: New Jersey : ADR : Alternative Dispute Resolution

In Lehr vs. Afflitto, decided January 19, 2006, the New Jersey Appellate Division ruled that the trial court erred in permitting a mediator to testify during a hearing held to determine whether the parties had reached a settlement of their matrimonial dispute.

After 22 years of marriage and two children, plaintiff filed a divorce complaint in 2002. The parties were directed to court appointed mediation. After two sessions, the mediator met briefly with the parties, without their attorneys, in order to finalize what was thought to have been an agreement between the parties. The mediator prepared a letter to the attorneys listing 13 items the parties had "agreed" to, identifying three items that were left open. The mediator made "recommendations" as to how the three open items might be resolved. These included the amount of defendant's child support obligation; the parties' financial responsibility for their childrens' college education expenses; and the allocation between them of interim marital expenses until the entry of a final divorce judgment.

The mediator intended that the open items be resolved through discussion among counsel and offered to hold a short meeting with the parties for that purpose.

A few days after the last mediation session, the defendant told the plaintiff that he had changed his mind, believing that the 13 items of supposed agreement were unfair and not in his best interest.

Regardless, plaintiff's attorney wrote to the court a few weeks later advising that the case had been settled. Defendant's attorney did not advise the court otherwise, but did advise Plaintiff's attorney approximately one week later, that his client did not accept the terms set forth in the mediator's letter. The court, ruling that it was the defendant's attorney's responsibility to inform the court that there was no settlement, once plaintiff had so advised the court, entered a judgment of divorce based upon the terms in the mediator's letter.

Defendant appealed and the Appellate Court directed the trial court to hold a hearing to determine whether a settlement had been reached. Defendant called the mediator as a witness and the court, over plaintiff's objection, allowed the mediator to testify. The mediator testified he had informed the parties the mediation was confidential, unless the parties agreed in writing otherwise. This is consistent with the rules under which the case was sent to mediation which provide that "all mediation proceedings shall be confidential and nonevidential." The mediator also testified that in his opinion his letter confirming agreement between the parties on the "vast majority of the case" did not constitute a binding settlement. He testified that the parties' "agreement" was in concept, subject to review by their attorneys. The defendant's attorney at the mediation was also called to testify. The trial judge ruled that there had been a meeting of the minds as to the 13 items of agreement, and that the parties were bound by their agreement.

On a second appeal, the Appellate Court, citing the importance of mediator confidentiality, and the appearance of mediator impartiality, ruled that it was improper for the trial court to have taken testimony from the mediator at the evidentiary hearing. The court was influenced by the importance of instilling trust and confidence of the participants in the mediation process, citing neutrality as the essence of the mediation process. The court was "wary" of the inevitability that mediator testimony would be characterized so as to favor one side or the other.

Absent an express waiver of the confidentiality provisions of R. 1:40-4 (c), the court held that the trial judge had erred in permitting the mediator to testify. Furthermore, the court found that the trial judge had also erred in concluding the parties had reached a settlement.

The Appellate Court sent the matter back a second time to the trial court for a trial on the merits. The court noted that not all matters are well suited to mediation and that notwithstanding the noble designs behind the process, some cases simply need to be tried.

Technorati Tags: New Jersey : Alternative Dispute Resolution : ADR

In a recent construction partnership break-up case, Caridi v. Caridi, a New Jersey Chancery Judge addressed whether an arbitration award should be confirmed where one of the parties alleged that the arbitrator's decision was erroneous because certain evidence was not considered. The party challenging the arbitrator's decision alleged that his former partner falsely claimed that certain documents relevant to the arbitration were "lost," only to have been later produced during an insurance investigation.

The Court was not convinced that the "lost" documents would have resulted in a different outcome and refused to disturb the arbitrator's money judgment award. The Court did, however, delay the payment of the award, to allow 30 days for the challenging party to appeal.

This case demonstrates the Court's reluctance to overturn an arbitrator's decision. For the prevailing party, this can be comforting. For the party disappointed by the outcome of an arbitration, it can be sobering. Courts are generally inclined to uphold arbitration awards, giving significant deference to the arbitrator's decision. This discourages appeals, consistent with the primary reason for choosing arbitration in the first place; a faster decision, binding upon both parties, thus avoiding the expense of litigation and protracted appeals.

It will be interesting to see whether the aggrieved party seeks to appeal this ruling or whether an appellate court will disturb the arbitrator's award.

Technorati Tags: New Jersey : Alternative Dispute Resolution : ADR

In The Matter of the Estate of Lee Siegel, deceased, Docket No. P-480-04, Judge Gerald C. Escala, Presiding Judge of the Chancery Division for Bergen County, rendered a decision on December 8, 2005, following a two-day bench trial in an estate matter. The decision centered around attorney fee applications made in the case.

While finding the attorney fee applications themselves to be reasonable, the Court admonished the litigants and counsel for having failed to perform a reality check as they proceeded with the case toward trial. Judge Escala noted that:

"All too often, litigants leave common sense behind when they embark on litigation in which they convince themselves they are destined to prevail, oblivious to the fact that they might not be successful. They also fail to notice the sometimes astounding amount of time in legal services (and costs) they are incurring to pursue their claim. It must be because in addition to their self-conviction of the justice of their case, they also firmly believe they will not have to pay for the legal services, so they proceed vigorously without regard to the costs. Or, they have a notion that counsel fees can be assessed by the court from some unidentified source, that is, one not related to the cause at hand."

The Court went on to explain that New Jersey follows the American Rule with regard to payment of legal fees, which requires that each side pay their own legal fees, with certain limited exceptions.

Judge Escala's words should be seriously considered by every attorney and client that becomes involved in litigation. Our courts are not a place to litigate personal feelings or personal agendas. Economic realities must play a key, if not defining, role. The toll in terms of cost, time and emotion is often not appreciated at the outset of a case. Parties should assess the strength of their case at the outset and honestly consider the strength of the other side. Playing the devil's advocate is a must. Attempting to settle early on through the process of mediation is a wise course to follow. It is true that certain cases will go to trial. However, all trial attorneys and litigants should heed the well written words of Judge Escala.

Technorati Tags: New Jersey : Litigation

Under New Jersey law, forum selection provisions in franchise agreements have been rendered enforceable. In Kubis v. Perszyk Assoc. v. Sun Microsystems, 680 A.2d 618 (N.J. 1996), the New Jersey Supreme Court held that the Forum-selection clauses in contracts subject to the New Jersey Franchise Practices Act are presumptively invalid and should not be enforced unless franchisor can satisfy burden of proving that clause was not imposed on the franchisee unfairly on the basis of its superior bargaining position. As a result, franchisors could not enforce their Forum-selection clauses to franchisees located in New Jersey. However, recently, the United States District Court held in Jesse Cohen, et al. v. Stratis Business Centers, Inc., et al.,, in a non-published decision, that the holding in Kubis applied only to judicial forums, as opposed to arbitral forums.

In Jesse Cohen, the franchise agreement contained an arbitration clause that stated in pertinent part, "[A]ny claim...that cannot be settled through negotiations, will be resolved solely and exclusively by binding arbitration initiated at and supervised by the [American Arbitration Association] office nearest to our home office at the time..."

The District Court held that the Federal Arbitration Act ("FAA") preempts Kubis to the extent that it invalidates forum selection clauses. In the past, District Courts sitting in other circuits have reached similar conclusions as the Jesse Cohen Court. However, this is the first decision in the third circuit (where New Jersey sits), to distinguish the New Jersey Supreme Court's ruling as not extending to arbitral forums and being preempted by the pro-arbitration policy of the FAA.

Technorati Tags: New Jersey : Franchise

At Stark and Stark we have long insisted on confidentiality throughout the mediation process. For example, our standard mediation agreement provides that the mediation statements submitted by the parties prior to the mediation session are confidential. Furthermore, the agreement provides that statements made during the mediation process are confidential. And, the parties are advised at the very beginning of the mediation session that a Stark & Stark mediator will not disclose to any party to the mediation any statement, offers or promises disclosed to the mediator during the mediation session without the express consent of the party who made the statement, offer or promise. Confidentiality of the entire mediation process is the "watchword" here at Stark & Stark. And, our insistence on confidentiality has recently been justified by the New Jersey Supreme Court's decision in State v. Williams, 184 N.J. 432 (2005).

The specific holding in Williams is that a mediator appointed by a Court under Rule 1:40-4 may not be called to testify in a subsequent criminal proceeding regarding a participant's statements during mediation. But, as will be discussed below, the opinion of the Court has broader ramifications. What were the facts in the Williams case?

Williams and his brother-in-law Bocoum enjoyed a close relationship. However, family problems caused that relationship to deteriorate. Bocoum began telephoning Williams and left taunting and profanity-laced messages. That led to a face-to-face argument which escalated into a physical fight. Williams claimed that Bocoum hit him with a shovel. Bocoum countered that Williams cut him with a machete. As a result of the fight Williams was arrested. Later he was indicted for third-degree aggravated assault, and weapons charges. At his criminal trial he defended against those charges by asserting that he acted in self defense. But, he was convicted of assault and a weapons charge.

After his arrest and before the criminal trial Williams filed a municipal Court complaint against Bocoum alleging that the phone messages constituted harassment. Pursuant to R. 1:40-4 the municipal Court appointed a mediator, Pastor Josiah Hall, in an attempt to resolve the harassment dispute. The mediation was unsuccessful.

At his later criminal trial Williams tried to call Pastor Hall as a witness to support Williams' contention that he acted in self-defense. The trial judge then questioned Pastor Hall outside of the jury's presence. Pastor Hall told the judge that Bocoum had stated during the mediation session that during the fight he had picked up a shovel. Although Williams testified that he acted in self-defense when confronted by Bocoum wielding a shovel against him and Bocoum testified that he did not have a shovel, the trial judge excluded Pastor Hall's testimony under Rule 1:40-4(c) which prohibits a mediator from testifying in any subsequent proceeding. The Supreme Court agreed, and the majority opinion strongly upheld the principle of confidentiality in the mediation process. Even though this was a criminal case with Fourteenth Amendment concerns, the Court affirmed the decision of the trial judge to bar Pastor Hall's testimony.

Stark & Stark's longstanding confidentiality practices are strongly supported by the Williams decision. As noted by the Court, "successful mediation with its emphasis on conciliation depends on confidentiality perhaps more than any other form of ADR".

Read the full article here(PDF).

Technorati Tags: Arbitration