Statewide Mediation Program
What is Mediation?Mediation is a dispute resolution process in which an impartial third party - the mediator - facilitates negotiations among the parties to help them reach a mutually acceptable settlement.The major distinction of mediation is that a mediator does not make a decision about the outcome of the case. The parties, with the assistance of their attorneys, work toward a solution with which they are comfortable. What is the Program?The New Jersey Supreme Court Committee on Complementary Dispute Resolution developed this mediation program, for use in Civil, General Equity and Probate cases. It began as a pilot July 1, 1995. Following submission of an evaluation report, the Supreme Court approved the program for permanent status effective September 1, 1998 and asked for a further report after two years. Participants in mediation (clients, attorneys and mediators) will be asked to complete a brief survey designed to get their impressions of the mediation sessions. How is a Mediator Selected a Case?Mediators participating in the program have been approved for inclusion on a roster by a subcommittee of the Committee on Complementary Dispute Resolution. Mediators meet training requirements set forth in Court Rule 1:40-10 and other criteria adopted by the subcommittee. When a case is referred to mediation, the parties have the opportunity to agree on a mediator from the roster, or they may select any other individual they feel is suitable. If they cannot agree, the judge will assign a mediator to the case. How Much does Mediation Cost?Under Court Rule 1:40-4(a), the mediator provides the first three hours on a case without charge, which would include a first session. Thereafter, mediators will generally be paid their market rate fee (to be shared by the parties). Fees will be waived in any case covered by Rule 1:13-2(a). What Happens in Mediation?There are certain ground rules the mediator will ask participants to follow in mediation. The first, and most important, is that with a few exceptions covered in Court Rule 1:40-4(b), what goes on in mediation is confidential. That is, what is said in mediation cannot be discussed outside of the mediation process unless the parties consent. Prior to mediation, the mediator will usually ask the attorneys to prepare a brief summary of the issues in dispute. Then, at the mediation session, the mediator will ask attorneys and their clients to make brief presentations about the issues from their own perspectives. After that, the mediator will help the parties to explore areas of possible compromise and to develop a solution that meets everybody's interests. Sometimes the mediator may meet with the parties separately for a private discussion that might help move the parties toward a resolution. If an agreement is reached, the mediator will notify the court and a document will be drawn up specifying the agreement. When everybody signs the agreement, the attorneys should request the court to dismiss the case. What Are the Roles of Counsel and Litigants in Mediation?Attorneys and their parties are required to make a good faith effort to cooperate with the mediator and engage in constructive dialogue regarding ways to meet client interests in a mutually acceptable settlement. Attorneys should prepare their clients prior to mediation by explaining what will happen, and what the roles of attorneys and clients are. They should also agree on who will be the principal spokesperson in presenting the party's view early in the mediation session. For example, attorneys may make brief opening summaries of the issues as they see them, but clients should also be given an opportunity to speak. When it comes to discussing terms of settlement, the litigants must play an active part, for it is their case and their settlement. During this process, attorneys should provide counsel on the advisability of settlement options, suggest options and be available for any other consultation with their clients. How Does a Case Get Into Mediation?Appropriate cases for referral can be identified by judges, court staff, or the parties themselves, at any point in the life of a case. A form of order for referral is prepared and signed by the judge. What Kinds of Cases Could Benefit from Mediation?Mediation has been used successfully in a broad range of cases which exhibit characteristics such as: the parties have an ongoing business or personal relationship or have had a significant past relationship; communication problems exist between the parties; the principal barriers to settlement are personal or emotional; parties want to tailor a solution to meet specific needs or interests; cases involve complex technical or scientific data requiring particular expertise; the parties have an incentive to settle because of time, cost of ligation, or drain on productivity; the parties wish to retain control over the outcome of the case; or the parties seek a more private forum for the resolution of their dispute. While there isn't any case type that couldn't potentially benefit, commercial, construction, products liability, environmental and Law Against Discrimination (LAD) cases, and certain General Equity and Probate cases are particularly suited to mediation because they tend to exhibit some of the characteristics described above. At What Time in the Process Should a Case be Referred to Mediation?The earlier that a case can be referred to mediation, the greater the likelihood that parties can resolve their dispute at cost savings to themselves and the court. Parties should feel they have enough information to discuss the dispute, which may mean that some discovery should be completed. Mediators can also help the parties to determine just how much discovery is needed. Even if discovery has been completed, settlement negotiations have been unsuccessful, or the parties are close to a trial date, the mediation process may still help the parties reach a mutually acceptable agreement. What if the Case Isn't Resolved in Mediation?Sometimes the parties are unable to reach agreement, or only agree on certain aspects of the dispute. If certain aspects are still unresolved, the parties may wish to submit that portion to an expert for an opinion (binding or non-binding) or use some other creative means. The case can also be returned to court, and continue on track towards trial. Even in these cases, the mediation process may have helped the parties move toward an ultimate settlement. This brochure was prepared by: |
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