State v. Williams
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”.