NJSBA Family Law Section

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing.

I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify.

Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify.

Any help is greatly appreciated. Thank you.

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[Alice M. Plastoris, Esq.
Law Office of Alice M. Plastoris
82 Speedwell Avenue
Morristown, NJ 07960
973-538-7070
e-mail: [email protected] or [email protected]
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Alice:

The Uniform Mediation Act provides protection from disclosure for you. Did your Mediation Retainer Agreement reference it or otherwise provide for confidentiality ?

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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Original Message:
Sent: 10/16/2014 1:00:53 PM
From: [email protected]
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing. I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify. Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify. Any help is greatly appreciated. Thank you. ------------------------------------------- [Alice M. Plastoris, Esq. Law Office of Alice M. Plastoris 82 Speedwell Avenue Morristown, NJ 07960 973-538-7070 e-mail: [email protected] or [email protected] -------------------------------------------

Original Message------

Alice:

The Uniform Mediation Act provides protection from disclosure for you. Did your Mediation Retainer Agreement reference it or otherwise provide for confidentiality ?

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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I understand that, but did you have a mediation agreement that you had the parties sign prior to the mediation?

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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Original Message:
Sent: 10-16-2014 13:11
From: Alice Plastoris
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

this was a Court ordered mediation. I was appointed by the court.

 

Alice M. Plastoris, Esq.

82 Speedwell Avenue

Morristown, New Jersey 07960

973-538-7070

973-538-7088 Fax

[email protected]

 

Original Message------

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing.

I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify.

Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify.

Any help is greatly appreciated. Thank you.

-------------------------------------------
[Alice M. Plastoris, Esq.
Law Office of Alice M. Plastoris
82 Speedwell Avenue
Morristown, NJ 07960
973-538-7070
e-mail: [email protected] or [email protected]
-------------------------------------------

Don't overthink this; just go straight to your evidence rules - my hobby (sad, I know).

RULE 519. MEDIATOR PRIVILEGE



(2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.



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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
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Original Message:
Sent: 10-16-2014 13:16
From: Lorraine Medeiros
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

Even if the mediation is confidential, if both parties agree to waive any confidentiality or any privilege that may have attached to the mediation, then you can be forced to testify. Otherwise, I think this attorney is just wasting your time.
 
Lorraine M. Medeiros, Esq.
56 Ferry Street
Suite 1
Newark, New Jersey 07105
 

Original Message------

Don't overthink this; just go straight to your evidence rules - my hobby (sad, I know).

RULE 519. MEDIATOR PRIVILEGE

(a) N.J.S. 2A:23C-4 provides:

a. Except as otherwise provided in section 6 of P.L. 2004, c. 157 (N.J.S. 2A:23C-6), a mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5 of P.L. 2004, c. 157 (N.J.S. 2A:23C-5).

b. In a proceeding, the following privileges shall apply:

(1) a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

(3) a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

Tell them to go fly a kite. It doesn't matter what the parties do. You, as mediator, can prevent everyone from disclosure. Oppose with one page letter brief, stating your position and citing the Rule. Period. No certification necessary. If they haven't filed anything yet, send everyone a letter telling them in advance that they will be wasting their time.

Thanks.

-------------------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
-------------------------------------------


Original Message:
Sent: 10-16-2014 13:16
From: Lorraine Medeiros
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

Even if the mediation is confidential, if both parties agree to waive any confidentiality or any privilege that may have attached to the mediation, then you can be forced to testify. Otherwise, I think this attorney is just wasting your time.
 
Lorraine M. Medeiros, Esq.
56 Ferry Street
Suite 1
Newark, New Jersey 07105
 

Original Message------

Also Supreme Court ruling in Willingboro Mall (8/13) lays it all out.

Sent from my iPhone

Original Message------

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing.

I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify.

Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify.

Any help is greatly appreciated. Thank you.

-------------------------------------------
[Alice M. Plastoris, Esq.
Law Office of Alice M. Plastoris
82 Speedwell Avenue
Morristown, NJ 07960
973-538-7070
e-mail: [email protected] or [email protected]
-------------------------------------------

Alice: Review case of Willinboro Mall v. 240 Franklin 215NJ 242 on privilege. I'd send a letter to lawyer citing legal authority that says you can't be compelled to testify and if a motion is filed send lawyer a frivilous claim letter and if motion is not withdrawn cross move for fees. Technically I think you may have to successfully defend before you can move. but this is really a waste of your time.But you are right. Lehr v. Afflitto is another good case on the privilege. Right here in  Morris County.

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Francis Grather Esq.
Morristown NJ
(973)292-9222
-------------------------------------------


Original Message:
Sent: 10-16-2014 13:00
From: Alice Plastoris
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing.

I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify.

Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify.

Any help is greatly appreciated. Thank you.

-------------------------------------------
[Alice M. Plastoris, Esq.
Law Office of Alice M. Plastoris
82 Speedwell Avenue
Morristown, NJ 07960
973-538-7070
e-mail: [email protected] or [email protected]
-------------------------------------------

Original Message------

Alice: Review case of Willinboro Mall v. 240 Franklin 215NJ 242 on privilege. I'd send a letter to lawyer citing legal authority that says you can't be compelled to testify and if a motion is filed send lawyer a frivilous claim letter and if motion is not withdrawn cross move for fees. Technically I think you may have to successfully defend before you can move. but this is really a waste of your time.But you are right. Lehr v. Afflitto is another good case on the privilege. Right here in  Morris County.

-------------------------------------------
Francis Grather Esq.
Morristown NJ
(973)292-9222
-------------------------------------------


Original Message:
Sent: 10-16-2014 13:00
From: Alice Plastoris
Subject: Can Mediators Be Compelled to Testify and turn over their confidential notes? HELP

I mediated a case in 2012.  The case did not settle and the mediation completion report to the court said the case was "unresolved".  I was contacted by Plaintiff's attorney today advising that there is a hearing in November and he wants a copy of my file with my notes and confidential submissions and he is compelling me to testify at the hearing.

I told him No, Mediation is confidential. The completion report that was filed with the  Court is available and reported the case was unresolved.  He is filing a Motion to compel me to turnover my file and to testify.

Now I have to defend a motion and be compelled to testify? Need Help. Without re-researching the Court Rules on Mediation (it has been awhile), my understanding is that everything is confidential and that Mediators cannot or should not be compelled to testify.

Any help is greatly appreciated. Thank you.

-------------------------------------------
[Alice M. Plastoris, Esq.
Law Office of Alice M. Plastoris
82 Speedwell Avenue
Morristown, NJ 07960
973-538-7070
e-mail: [email protected] or [email protected]
-------------------------------------------