October 2002
Among an array of dispute resolution techniques is mediation, which is a subset of something known as a Facilitative Process in New Jersey (Rule 1:40-2(c)). The mediation process provides for a trained third party neutral with professional and life experience aiding communication among parties in order to promote settlement.
New Jersey has labeled the various dispute resolution modalities as Complementary Dispute Resolution (CDR). To the surprise of many, the court rules have mandated a responsibility for attorneys to become familiar with available CDR programs and further to inform their clients regarding them. This concept, which originated in Washington, D.C., has also been referred to as a multi-door court house where a litigant could choose the appropriate process to resolve his/her particular claim.
Although mediation practices vary depending upon the local culture, New Jersey has chosen self-determination by the parties as the backbone of the process. In other words, the parties have maximum input in determining their fate in contradistinction to an adjudicative process where a judge or arbitrator does an evaluation and makes a judgment. This process provides a real opportunity for result oriented disputants.
Mediation is available whether a lawsuit has been filed or not. Private mediation comes in all shapes and sizes. Trained mediators who may or may not be lawyers, as well as retired judges, make themselves available outside the court system. Within the court system, mediation referral may be mandated by a Superior Court Judge. In any civil case, including general equity and probate matters, the assignment may be sua sponte or at the request of a party. There is also an organized mandatory presumptive mediation program which is currently being extended to include at least ten of the twenty-one counties where twelve case types listed on the CIS form are ordered to participate in mediation. The cases are generally complex cases and include those disputes where relationships between the parties or technical subject matter or the like suggest that the litigation process may not provide as efficient or optimal a remedy.
The mediation proceeding is generally organized by telephone conference call where the process is explained, conflicts of interest are discussed and arrangements are made for focused information exchange in lieu of the full range of discovery. Eighty percent of the cost of all litigated cases is expended in the discovery phase of a lawsuit. Experience tells us that informed decisions as to resolution of a dispute usually require identification and/or exchange of critical information. Mediation allows a more discrete delivery of such information much more efficiently than litigation. It is not unusual in mediation to utilize experts or their reports or even traditional discovery processes such as depositions generally limited to the actual subject matter necessary for the parties to create options so an informed settlement decision can be made.
Confidentiality protects the mediation process since a party=s disclosure during mediation cannot be admitted in a civil, criminal or quasi-criminal proceeding and the mediator is constrained from participating in any way in a hearing or trial of the matter (Rule 1:40-4(c)). The mediator may not communicate the substance of any information outside the process, including to the court under constraints set out in Standards of Mediator Conduct adopted by the Supreme Court. These Standards are the Aethics@ rules for mediators and are managed by a sub-group of the Supreme Court CDR Committee.
A mediator also affords confidentiality within the process by agreeing to keep information, including law, strategy, demands or offers of the parties confidential when such information is communicated solely to the mediator. Since the mediator works with the parties and their attorneys, both together as well as in separate caucus meetings, he or she is not bound by the same rules as in an adjudicative process. Accordingly, ex parte communication is permissible and generally utilized.
One feature of mediation that probably accounts for a high resolution rate is participation by principals of the disputants who have authority to make a decision. In litigation the client may participate before the suit is initiated, by participating in a deposition and/or preparation for/or attendance at trial. Lawyers often lead clients through the adjudicative process. Judges or arbitrators literally decide the party=s outcome. In mediation, because of principal participation, barriers that would otherwise chill the resolution process are lifted. Parties, particularly those with a past relationship, have the opportunity to deal openly with each other either in or outside the presence of their counselors. In the informal mediation process, with an on-going give and take, the opportunity to vent, and the consideration of objectively real guideposts utilizing a risk benefit analysis, often the ingredients for resolution are provided.
Most disputants have ingrained in their fiber the methods of distributive or positional bargaining. That method of dealing appears universal and has been described as what World War I must have been like with the combatants in trenches forcing each other either to overrun the adversary=s trenches, be overrun, or achieve an armistice somewhere in no man=s land. Mediation encourages participation in the process with interest based bargaining, where the parties, instead of posturing for a position, identify for themselves and their adversaries the various benefits and detriments of the issues and the disputants as well as potential or likely outcomes. Mediators often help disputants in refocusing the problem so that the parties with authority to deal can better evaluate potential remedies, which are not limited to traditional pigeon holes available in court. Often times the lawsuit is pretextual to the actual underlying dispute, e.g., family business breakups may well fit into this category.
Mediators approved by the court are required, in addition to professional experience, to participate in a formal course of study of the mediation process, along with attendance with a qualified and experienced mediator in several actual sessions (R. 1:40-12). Each court approved mediator must also maintain his/her qualification by participating in an annual four (4) hour advanced training program. The approved mediators are listed at the judiciary web-site, www.judiciary.state.nj.us. in searchable format.
Lawyers representing clients in disputes who see the facility of mediation or whose clients are required to participate in mediation, should consider a mediation advocacy training course in order to be in a position to best counsel their clients through the process as well as to understand how to choose an effective mediator. Although the court ordered mediation provides the name of a mediator chosen off the approved list, the parties, within 14 days of a court referred mediation, may independently choose a mediator, whether on the approved list or not, to complete the process.
Although it may be counterintuitive, a mediator your adversary favors should be chosen, especially if you represent a party who is likely to collect money in a case. It is the payer or one who must give up something valuable that must feel comfortable in the process to obtain closure. Also, consider the style of the mediator. How directive or evaluative as opposed to facilitative a mediator conducts themselves may influence whether you select a retired judge or experienced lawyer, accountant or engineer who has been trained and has practiced mediation techniques.
Currently, the dispute resolution culture in New Jersey appears to be changing by reason of the education of litigants and lawyers who have been required to participate in the process. It should be noted that studies have indicated that there is no difference in resolution rates whether the mediation is voluntary or mandated. States such as Florida, Maryland, Minnesota, Oregon and California, among others, and many Federal Courts, have embraced mediation because of the participatory nature of the process where a creative remedy may be employed, without the limitations or excessive cost of an adjudicative process.
New Jersey has also determined that, at least within the court system, mediation should be offered at an early stage before the parties have become so entrenched in combat as to not remember why they are fighting and before large sums have been invested in the controversy. Note that the direction to mediation by court order requires that participation in mediation Ashall be in good faith and with a sense of urgency. Although we don't know what that means precisely, it certainly means active participation in the process.
One major structural problem with mediation presently is that it imposes upon the court approved mediators, numbering over 700 so far, to give three free hours of time for each mediation, after which, if the parties do not opt out of mediation, the mediator may charge a market rate fee. The fee is shared equally by the parties unless the parties are indigent or economically disadvantaged, or the parties to the mediation agree otherwise. A court may reallocate mediation fees on an equitable basis and the court approved mediator who has been assigned the case is constrained to give services pro bono for a party who meets the indigency criteria. Although the three free hours in the state system have allowed mediation to grab a foothold as an accepted dispute resolution process, the mediation community will not continue to make its best mediators available unless a base fee is approved for those first three hours. It is not economically viable to run a business on that basis of three free hours especially when many cases resolve within that time period or shortly thereafter.
If you're interested in learning more about mediation, you should consider courses given by ICLE in mediation advocacy, basic or advanced mediation training, joining in the Dispute Resolution Section of the NJSBA, becoming a member of the Justice Marie L. Garibaldi American Inn of Court for Alternative Dispute Resolution or becoming a member of the New Jersey Association of Professional Mediators. The fact that the culture is changing to include the dispute resolution processes, such as mediation, will not vitiate the effectiveness or necessity of litigation in the appropriate case. However, consideration should be given to learning about mediation in order to meet an attorney=s responsibility to inform his clients of the various processes that are available, as well as being facile as an advocate in the process.