Lehr vs. Afflitto

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.

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