In a report published for its 2009 – 2010 term, the New Jersey Supreme Court Committee on Complementary Dispute Resolution came up with certain recommendations concerning changes in the New Jersey Civil Presumptive Mediation Program. The New Jersey Supreme Court adopted the Committee’s recommendations and has amended Rules 1:40-6(b), 1:40-12(b)(2) and Rules Appendix XXVI. These amendments will take effect on September 1, 2011. The purpose of these Rule amendments are to streamline and improve certain areas of the mediation program and mediation process.
The amendments approved by the New Jersey Supreme Court deal with: 1) the ability of parties to select their own mediator; 2) continuing education requirements for mediators; 3) charging of retainers by mediators; and 4) the method for mediators to secure assistance from the Courts to collect unpaid fees.
Selection of Mediator
The New Jersey Court Rules have always allowed parties involved in litigation to select a mediator of their own choice. Prior to the recent Rule amendments, the Court Order for mediation named the mediator that would handle the mediation and the designation of that mediator was effective as of the date of the Order. The parties could replace the designated mediator with a mediator of their own choice. The amended Rule change is subtle in that it still allows the parties to choose their own mediator. However, under the new Rule, the designation of the Court appointed mediator does not become effective for a period of 14 days after the date of the Order. During those 14 days the parties may choose their own mediator. If the parties do not choose their own mediator within 14 days, the mediator designated by the Court will become effective.
Continuing education has always been part of the mediation process. The amendment to R. 1:40-12(b)(2) provides that continuing mediator education shall now include instruction in ethical issues associated with the mediation process.
The amendment to Appendix XXVI dealing with the compensation of mediators, now allows mediators on the Court’s mediation roster to charge a retainer once the two free hours of mediation have been completed and provides that mediators can charge more than the allowed one hour for pre-mediation preparation if the parties are so advised and there is an appropriate written disclosure prior to the beginning of the initial mediation session.
Enforcement of Compensation of Mediators
Getting paid is obviously an important concern of mediators. The amendments to the mediation Rules also change the process as to how mediators will have access to the Court system to collect fees. Previous, mediators could apply to the Court for the issuance of an Order to Show Cause in the event that they were not paid for their services. This process will no longer be allowed. Instead of providing that the Court issue an order requiring the delinquent party to show cause why the mediator’s fee has not been paid, the Rule amendment provides that mediators may bring an action in the Special Civil Part of the county where the underlying action was brought. While mediators will still have access to the Courts to help them get their fees paid, the manner of enforcement has changed.
Mediation in New Jersey is very successful but is a constantly evolving process. We can certainly expect new amendments to the Rules on a continuing basis.