The anticipated wave of court-referred civil and family mediations represents a golden opportunity here in New Jersey. The court system and the private mediation community should work to produce the best of all possible worlds: efficient case processing coupled with fair, creative, and satisfying resolutions. If mediation referrals are intended to mitigate the oft-heard complaint that “litigation costs too much and takes too long,” then we mediators must be part of the solution, not the problem.
Trial judges and mediators are starting to search for “best practices,” especially as we integrate functions. After 4 years of court-referred mediation work, primarily in Somerset, Middlesex, and Mercer Counties, and numerous judicial education panels on which I have participated and listened during that time, I respectfully suggest the following approaches:
- While maintaining confidentiality of communications, mediators should keep referring judges regularly informed of basic progress or lack thereof in referred cases. Judges and court staff cannot perform essential case management functions without knowing whether cases are moving toward settlement. Simply removing cases from the trial list for 45 to 90 days and then returning them to court serves no useful purpose.
Mediators should candidly advise referring judges as to the appropriateness of the referral from the mediators’ perspective: do we have the subject matter and process skills? Is there an actual or apparent conflict of interest barring our participation? Do we have the necessary time and interest level for the referred matter? These considerations will vitally affect the quality and perceived fairness of both mediation process and outcome.
- We mediators must be “up front” with referring judges and parties’ counsel regarding mediator compensation issues. Does everyone understand the 3-hour pro bono component (including preparation time), followed by compensation for time at market rates and reimbursement for out-of-pocket costs? Will all parties share equally in time and cost payments, or are some parties paying more than others? Is there an issue of indigence under R. 1:13-2? The court’s Order of Referral or a Supplemental Order should address these items. If parties or counsel fail to honor their financial commitments, then mediators should advise that we will ask the court for help (no one wants to see new collection litigation spawned out of mediated cases). In the few matters in which I’ve had to ask referring judges to help collect my fees or costs after the mediation was completed, they have agreed to send a letter or make a call, as happens sometimes in cases of court-appointed expert witnesses who remain unpaid.
- We should ask referring judges if they have been assigned continued case management during the mediation. If so, they may be open to answering periodic questions of concern to the parties or legal counsel. Such informal judicial feedback, while expressly not binding on the parties or the court, may help parties with their own case evaluations. If a judge is willing to entertain that type of request and the parties want to know, this may be a useful way to move a case forward. For example, if a judge has a consistent view on a valuation or evidentiary issue, or a court rule, statute, or case on which a party may be relying, then the mediator can deliver the news in, as his/her good judgment may dictate, caucus or plenary session. This is nothing new. Lawyers in case management conferences seek the court’s views all the time. With appropriate phrasing and hedging, many judges are willing to give nonbinding indications for counsels’ and parties’ consideration. In such situations, mediators as honest brokers of information may advise counsel and parties about the court’s leanings if they are interested. In that sense, the mediator may serve as an information buffer between the parties and the court.
- We need to know whether discovery, discovery motions, and/or dispositive motions will go forward or be stayed during mediation. Mediation is possible either way, but the more court-directed activities that go forward during mediation, the harder it is to get parties’ attention and necessary “buy-in”.
If a dispositive motion is filed or about to be filed, should mediation wait until the motion is completed? That is worth considering, since we might be bringing unnecessary parties or issues to the table. That discussion is worth having with the referring judge up front. On the other hand, there are times when non-parties and extra-legal issues can and should be brought into mediated negotiations. The process is highly flexible in a way that litigation is not.
- If mediation is not working, then we have to work with the parties and/or the court to discern the specific problems and construct process options that may get matters back on track. Would it help (or hurt) to bring in a neutral expert satisfactory to all? Will some or all lawyers and parties feel better about (and work better in) mediation if additional discovery is allowed? Can the mediator help counsel and the parties shape discovery process? Can a mediator’s caucus with each side’s counsel help parties (or party factions) work out certain internal problems, thereby facilitating global resolution? I have mediated sub-issues such as fee disputes and insurance coverage that, left unresolved, would have frustrated resolution of more complex issues affecting all parties. In this field, we do (or should do) what works for the parties.
- We should use the court’s “reflected power” to keep the parties on track regarding scheduling of pre-mediation conference calls, written submissions of public and private positions, mediation sessions, arranging of caucuses, and the like. The Order of Referral clearly states the parties’ duty to attend meetings, produce individuals with authority to settle, and negotiate in good faith. We have to use moral suasion whenever and however possible. These considerations also affect the critical issue of deadline extensions, a powerful tool in the mediator’s toolkit. Should the initial 45-day period be expanded? If so, by how much? If the first extension goes 30 days, should the next go 15 days? Should the mediator recommend no extensions even if the parties want one? This is a subtle matter requiring careful evaluation among counsel, the parties, the mediator and the court.
- We must be creative about process solutions. If most issues are verging on settlement and a piece remains unresolved, then we should ask parties if they are open to referring unresolved issues to the court for a binding determination on, for example, counsel fees and costs, an isolated damages issue, or the like. If the parties or some of them are unhappy with the judge, then find out if referral to another judge or a private arbitrator would work instead. The goal here is to keep the process moving in the direction of settlement, even if everything cannot be wrapped up in a neat package. I recall a recent matter in which an interlocutory appeal was granted right during mediation. The issues were assigned to an Appellate Division mediator, who I immediately advised of my role for the trial court. Through our joint efforts and the parties’ agreement to refer certain items to the trial judge for final disposition, we fashioned a global approach that efficiently resolved all outstanding issues. The appeal was dismissed voluntarily, the parties settled on the issues they could, the court “called” the portion the parties could not agree on, and the case was fully resolved without trial or further right of appeal.
- If a mediation matter gets and stays out of hand, is it possible that, rather than return the case to the trial list, the matter should be assigned to a different mediator? This aspect of mediator judgment requires our appropriate humility and respect for the overall process. That is, if a matter is properly referred to mediation but we realize we aren’t right for it, then we have a duty to recognize our limits and refer the parties to the court for reassignment or further case management.
- We should routinely ask referring judges, counsel, and parties for feedback on our performance, and mean it when we ask. We are all learning. We may be doing something (or failing to do something) that is blocking effective facilitation. We must be open to listening and changing –just what we tell our mediation clients they should do. We also should provide lawyers and parties with evaluation forms for completion and return to the AOC in every mediation we do. Importantly, we should also complete our mediator evaluation forms: the system wants to know whether referrals are being made timely, whether the cases are appropriate for mediation, when in the life of a case it was settled, or, if it failed to settle, when and why. Modifications to current and proposed court-referred mediation programs will be both consumer- and data- driven. As mediators, we need to be sure accurate data is collected and submitted. We also want to ensure that our views as professional mediators are properly articulated to and understood by our statewide judicial system.
In the world of New Jersey court-referred mediation, we are officially living in interesting times. I hope the foregoing suggestions prove useful as we move into mediation’s next wave. I welcome your feedback, constructive criticism, and additional “ideas that work.”