CONFIDENTIALITY AND NON-EVIDENTIAL NATURE OF COMPLEMENTARY DISPUTE RESOLUTION PROGRAMS INVOLVING MEDIATION
Fall & Romanowski, New Jersey Family Law, Child Custody, Support and Protection (GANN) goes to press this week. One of the concerns addressed in the online version this year is clarification of the strict evidentiary privilege and confidentiality inherent in all modes of Family Part mediation, since it has been noticed that proper application has been inconsistent throughout the State. Here is a “sneak preview.”
Evidentiary Privilege and Confidentiality Inherent in All Modes of Family Part Mediation.
It has been observed that there is uneven application of the privilege and confidentiality requirements of all forms of Family Part mediation throughout the State. The overarching statutory provisions are set forth in N.J.R.E. 519. MEDIATOR PRIVILEGE as follows:
(a) N.J.S. 2A:23C-4 provides:
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).
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.
Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
The content of the mediation is definitely not admissible in evidence in any proceeding. If testimony is offered, for example, which contains statements made in the context of mediation, it is clearly objectionable and must be stricken upon objection. N.J.S. 2A:23C-7.
While not technically a limit on appealability, per se, application of the “harmless error” rule, announced in R. 2:10-2 (“Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result ....), amounts to the same thing. As with issues that are not appealable, harmless errors are “disregarded” by the appellate court and the remedy sought by the party raising the error is denied. The procedures for preserving error enable a court to ensure a fair trial.
That being said, the court’s consideration of otherwise privileged mediation content, could well amount to plain error, depending upon the content. For example, if a party testifies to statements made at a mediation of any sort over objection – including mediation processes under alternate labels, such as Intensive Settlement Programs – and the objection is overruled, with the court actually commenting on the record to the effect that this is exactly the sort of content he or she is attempting to explore (a clear expression of a high level of relevance to the fact-finding and decision-making processes) could very well lead to reversal on plain error grounds.
Timely objection and motion to strike is not even necessary to preserve the issue in the case of plain error. An issue not properly raised or preserved below may nevertheless be considered by the appellate court if it meets the plain error standard of R. 2:10-2: “the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.” See e.g. State v. Gore, 205 N.J. 363, 382-383 (2011) (the plain error rule “applies on appeal when no objection is made at trial”); DYFS v. M.G., 427 N.J. Super. 154, 167 (App. Div. 2012). And see Henebema v. SJTA, 430 N.J. Super. 485 (App. Div. 2013), aff’d 219 N.J. 481 (2014) (addressing issue “in the interests of justice” but summarily rejecting it). As set forth in State v. Blanks, 313 N.J. Super. 55, 63-64 (App. Div. 1998):
Under plain error review, a defendant must establish three things: (1) there was error; (2) the error was clear or obvious; and (3) the error affected substantial rights. In other words, the error must have affected the outcome.
It is important to note, however, that the source rule would not obtain in the event the privilege is expressly waived.
(b) N.J.S. 2A:23C-5 provides:
A privilege under section 4 of P.L. 2004, c. 157 (N.J.S. 2A:23C-4) may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L. 2004, c. 157 (N.J.S. 2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure…
There is also a narrowly defined, exhaustive list of exceptions to the privilege.
(c) N.J.S. 2A:23C-6 provides:
There is no privilege under section 4 of P.L. 2004, c. 157 (N.J.S. 2A:23C-4) for a mediation communication that is:
(1) in an agreement evidenced by a record signed by all parties to the agreement…
(7) sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of [Child Protection and Permanency] in the Department of Human Services is a party, unless the Division of [Child Protection and Permanency] participates in the mediation.
It is more than abundantly clear that any individual conducting any sort of mediation in any context, may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. N.J.S. 2A:23C-7. This mandate strictly applies, whether private mediation, mandatory economic mediation, or complimentary dispute resolution, such as court-sponsored custody and parenting time mediation, so-called Intensive Settlement Programs, and including any sort of process the court may direct, such as sending the parties to mediation by court staff as a prerequisite to proceeding to custody or parenting time hearings, for example.
The only disclosures permissible in the context of such mediation processes are: (1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or (2) a mediation communication as permitted under section 6 of P.L. 2004, c. 157 (N.J.S.2A:23C-6). Any communication made in violation of subsection a. of N.J.S. 2A:23C-4 may not be considered by a court, administrative agency, or arbitrator.
As N.J.R.E. 101 (a) Applicability; exceptions clearly states:
(1) Privileges. The provisions of Rule 500 (privileges) shall apply, without relaxation, to all proceedings and inquiries, whether formal, informal, public or private, and to all branches and agencies of government.
It is quite clear that the Rules of Court may neither abrogate nor modify in any way the Rules of Evidence. The Supreme Court has made clear that the adoption of rules of evidence in New Jersey is a shared enterprise, involving all three branches of government. In State v. Byrd, 198 N.J. 319, 342-343 (2009), the Court described the two methods for adding new rules of evidence contained in the Evidence Act, N.J.S. 2A:84A-33 through 2A:84A-44.
In the first, a Judicial Conference, comprised of lawyers, judges, and academics, drafts rules for approval by the Supreme Court. If approved, the rules are filed with the Legislature and Governor in September and unless the proposed rules are rejected by resolution, automatically take effect the following July. See N.J.S. 2A:84A-34. See also State v. Rose, 425 N.J. Super. 463, 467 (App. Div. 2012), noting that N.J.R.E. 804(b)(9) was adopted pursuant to this method. The second is a more flexible method by which the Supreme Court submits proposed rules to the Legislature and Governor for approval by resolution. See N.J.S. 2A:84A-38.
Unwarranted confusion seems to exist with respect to mediation-related R. 1:40. Complimentary Dispute Resolution Programs.
Complementary Dispute Resolution Programs (CDR) provided for by the rules are available in the Superior Court and Municipal Courts and constitute an integral part of the judicial process, intended to enhance its quality and efficacy. Attorneys have a responsibility to become familiar with available CDR programs and inform their clients of them.
However, R. 1:40-4 Mediation - General Rules may be confusing to jurists, practitioners and others. Perhaps, this is due to the following subsection:
(b) Compensation and Payment of Mediators Serving in the Civil and Family Economic Mediation Programs. The real parties in interest in Superior Court, except in the Special Civil Part, assigned to mediation pursuant to this rule shall equally share the fees and expenses of the mediator on an ongoing basis, subject to court review and allocation to create equity…
This provision has absolutely nothing to do with the limitations of the N.J.R.E. 519 privilege. It is merely an articulation of how compensation and payment of mediators serving in the Civil and Family economic mediation programs is to be accomplished.
1:40-4 (c) Evidentiary Privilege clearly states:
A mediation communication is not subject to discovery or admissible in evidence in any subsequent proceeding except as provided by the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13. A party may, however, establish the substance of the mediation communication in any such proceeding by independent evidence.
1:40-4 (d) Confidentiality continues as follows:
Unless the participants in a mediation agree otherwise or to the extent disclosure is permitted by this rule, no party, mediator, or other participant in a mediation may disclose any mediation communication to anyone who was not a participant in the mediation. A mediator may disclose a mediation communication to prevent harm to others to the extent such mediation communication would be admissible in a court proceeding. A mediator has the duty to disclose to a proper authority information obtained at a mediation session if required by law or if the mediator has a reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm. No mediator may appear as counsel for any person in the same or any related matter. A lawyer representing a client at a mediation session shall be governed by the provisions of RPC 1.6.
Cautionary Notes Concerning Matrimonial Early Settlement Programs.
Rule 5:5-5. Participation in Early Settlement Programs states:
All vicinages shall establish an Early Settlement Program (ESP), in conjunction with the County Bar Associations, and the Presiding Judges, or designee, shall refer appropriate cases including post-judgment applications to the program based upon review of the pleadings and case information statements submitted by the parties. Parties to cases that have been so referred shall participate in the program as scheduled. The failure of a party to participate in the program or to provide a case information statement or such other required information may result in the assessment of counsel fees and/or dismissal of the non-cooperating party's pleadings. Not later than five days prior to the scheduled panel session, each party shall be required to provide a submission to the ESP coordinator in the county of venue, with a copy to the designated panelists, if known.
Although the assumed popular belief is that these proceedings are non-evidential and strictly confidential, as in the case of mediation-like activities, the Rule is silent as to this important aspect. Similarly, the Rules of Evidence do not include any independent privilege for non-binding arbitration. The potential for problems is compounded by the stylistic differences of the panelists. Some, on occasion, may ask to speak to the parties individually, in an attempt to reach settlement, thus traveling from an arbitration to mediation role.
Practitioners who do not want to risk panelists being subpoenaed to testify should be reasonably concerned about the way this process is permitted to unfold. The only protection from disclosure is N.J.R.E. 408 SETTLEMENT OFFERS AND NEGOTIATIONS, which states:
When a claim is disputed as to validity or amount, evidence of statements or conduct by parties or their attorneys in settlement negotiations, with or without a mediator present, including offers of compromise or any payment in settlement of a related claim, shall not be admissible to prove liability for, or invalidity of, or amount of the disputed claim. Such evidence shall not be excluded when offered for another purpose; and evidence otherwise admissible shall not be excluded merely because it was disclosed during settlement negotiations.
Accordingly, cautionary practice would include not permitting parties to interact directly with panelists, as well as refraining from making N.J.R.E. 803(b)(3) Authorized Statements; a statement by a person authorized by the party to make a statement concerning the subject. The rule provides that when a person is authorized by a party to make a statement concerning the subject matter of that statement, the statements made are admissible against the party who authorized them to prove the truth of the matter contained therein. The authorization must have been broad enough to include the making of the statement or the statement will be excluded. See 2 Jones on Evidence §13.27 (6th ed. 1972). This rule codifies prior New Jersey law. King v. Atlantic City Gas and Water Co., 70 N.J.L. 679 (E. & A. 1904); Cafone v. Spiniello Construction Co., 42 N.J. Super. 590 (App. Div. 1956). See also 2 McCormick on Evidence §259 (4th ed. 1992). Note also that the statement need not have been against the interest of the party authorizing the statement at the time the statement was made. Cf. N.J.R.E. 803(c)(25).
There remains the issue of the Early Settlement Panel Memorandum. R. 1:38-3 defines the limited documents not subject to review, which include Case Information Statements (and attachments); Confidential Litigants Information Sheets; medical and psychological reports and evaluations (in the context of child support and custody determinations); paternity records and reports; domestic violence records; juvenile delinquency records; adoption records and reports; records of DYFS/DCPP proceedings; and records of hearings on the welfare of status of a child.
R. 1:38-3 does not exclude from public review any Early Settlement Panel Memorandums, pleadings and motion certifications. It is questionable whether or not Custody Neutral Assessment reports are included within the protection of this rule. Cautious practice may prompt the inclusion of “offered without prejudice” or other N.J.R.E. 408 disclaimer language on the face of any ESP Memorandum (or with any R. 5:8-5. Custody and Parenting Time/Visitation Plans, for that matter).
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
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