Business Conflict Blog

In New Jersey, the Superior Court Appellate Division recently approved for publication a decision in which a party to a mediation successfully sought to enforce a settlement agreement reached orally but not commited to writing during the mediation.  The objecting party had claimed that (a) the New Jersey Rule pursuant to which the mediation took place required a writing in order for the settlement to be enforceable, and (b) the purported agreement was the product of coercion by the mediator.

Of particular interest, the party seeking enforcement “supported the motion with a certification of their attorney and the mediator,” who also was deposed and testified at the hearing.

Of even more particular interest, the parties in this General Equity action selected a retired (and unnamed) Superior Court Judge as mediator.  The trial judge on the motion found his former colleague’s testimony “highly credible.”  Imagine that!

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Tags: Courts, Mediation

If nothing is ever as simple as it looks, then the seemingly simple rules of mediation confidentiality are particularly complex.  A group of colleagues was discussing the following hypothetical and could reach no clear conclusion:

A mediation session concludes with defendant’s counsel agreeing to revert to his (governmental) client to determine if an offer could be made along certain suggested lines.  A week later, counsel phones the mediator and directs that the offer can, in fact, be conveyed.  But the mediator can’t get the plaintiff’s counsel to call her back.  After many attempts, the mediator faxes a letter to plaintiff’s counsel, generally outlining the offer.  But she hears nothing.

Some months later, the mediator learns from the plaintiff that his claim was dismissed at summary judgment and, by the way, why did the defendants never get back about that final proposal?  The mediator says that they did make the proposal.  The plaintiff becomes upset and says that his (former) lawyers apparently never conveyed it to him.  Plaintiff asks what the terms of the offer were.

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Tags: Mediation

There has been an uncharacteristic spate of impasses lately in my practice.  Sitting back and examining why, the conclusion might be that one or more of the parties didn’t come to the mediation to move ahead to the next stage in their business.  They came to it to re-affirm the past, to find a way back to the “good old days” when they didn’t have this problem.  And problem-solving processes aren’t the best tools for vindicating past behavior.

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Tags: ADR, Mediation

Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.  On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.

Denying that he had “anything new to say to experienced mediators,” Brazil instead posed the questions: What can mediators contribute to shaping the future?  How does court-mandated mediation fit in our system of justice?  Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations? Read more »

Tags: Courts, Public Policy