The Uniform Mediation Act: Strengthening Mediation in New Jersey

Monday, December 27, 2004

by Hanan M. Isaacs, M.A., J.D. On November 22, 2004, Acting Governor Richard J. Codey signed the Uniform Mediation Act-New Jersey (“UMA-NJ”) into law, the culmination of seven years of effort by the national and New Jersey dispute resolution communities. The UMA-NJ, now codified at P.L. 2004, Chapter 157, N.J.S.A. 2A:23C-1, et seq., received support from the New Jersey Department of Labor, the New Jersey Public Employment Relations Commission, the New Jersey Association of Professional Mediators, the New Jersey State Bar Association, the Association for Conflict Resolution-New Jersey Chapter, the New Jersey Law Revision Commission, and the Administrative Office of the Courts.

Widely hailed as a “good government” law, UMA-NJ passed both Legislative houses without a single dissenting vote, and for good reason. UMA-NJ is a well crafted law and, like the Uniform Arbitration Act that preceded it in 2003, it represents a tremendous step forward for dispute resolution in our State.

The National Conference of Commissioners on Uniform State Laws (“NCCUSL”) and American Bar Association took five years to develop the bill template. The drafters of UMA-NJ took two more years to customize it to New Jersey’s unique legal and mediation cultures. UMA-NJ therefore represents the product of many thousands of professional work hours, built upon arduous discussion, debate, and multiple revisions by the national and state dispute resolution communities.

UMA-NJ expressly exempts from its scope mediation proceedings before the Public Employment Relations Commission and State Board of Mediation, as well as disputes pending under a collective bargaining agreement or conducted in peer mediation programs in schools or juvenile detention facilities.

UMA-NJ represents a significant change in New Jersey law, which previously gave no confidentiality protection and no statutory privilege regarding mediation communications in the private sector, and only limited protection in the court-referred setting. The new law protects confidentiality of communications and creates enforceable privileges for all participants and the mediator. It also:

  • Broadly defines both the mediation process and protected mediation communications, for the maximum protection of participants, their representatives, and the mediator;
    Advises parties that they have the right to create their own rules of confidentiality and exceptions to privilege;
  • Explicitly provides that any writings signed by the parties are not privileged or confidential, such as mediation retainer agreements and signed settlement agreements arising out of mediation;
  • Establishes other important exceptions to privilege, such as when a party sues the mediator or another professional who participated in the mediation, or when communications amount to a physical threat, or present evidence of a plan to commit a crime, or evidence of child abuse;
  • Creates a “Tony Soprano” waiver and preclusion of privilege for organized crime activities that take place in a mediator’s office;
  • Prohibits mediators’ substantive reports to the court, but allows process reports about the status of mediation, whether settlement was reached, and attendance of parties and counsel;
  • Requires mediators’ due diligence and reportage about possible conflicts of interest, which the parties are then permitted to ignore; and
  • Permits attorneys or anyone else designated by a party to accompany the party and participate in the mediation. (Clearly, however, the mediator retains control of the proceedings, and unruly non-party participants may be invited to leave, or the mediator may cancel the process.)

I believe that mediators now have an obligation to present these rules and their exceptions to mediation parties and their legal counsel and any non-party participants at the beginning of mediation, in an understandable way, both orally and in writing. Mediation is built on the twin concepts of self-determination and informed consent, and the mediator must honor both values for the mediation process to be deemed fair and impartial.

UMA-NJ substantially modernizes and strengthens the dispute resolution field here in New Jersey. It sets out clear “rules of the road” for parties and their attorneys, mediators, and trial judges, many of whom have come to expect privacy in the mediation process. The law generally prevents mediation communications from leaking into later judicial or arbitration proceedings, while simultaneously permitting or requiring use of such communications in narrow circumstances when required by public policy, such as in criminal or child abuse proceedings.

The new law is of vital importance to New Jersey’s citizens, many of whom have voiced deep and abiding concerns about the costs and delays of the adversarial system. “It takes too long and costs too much,” they say. The New Jersey court system has come to rely upon the mediation community to keep cases out of the system, to help clear up case backlogs within the system, and to winnow out newly filed cases that will not require hands-on case management, judicial intervention, or a jury trial.

UMA-NJ supports mediation as a triage tool, one that allows judges and lawyers to identify those cases that will and will not yield to mediation’s “kinder and gentler” intervention. Parties, their legal counsel, mediators, and trial judges now have a uniform set of rules governing confidentiality of communications, so that everyone understands the rules from the get-go, whether or not mediation participants end up in court.

To preserve uniformity between private sector and court-based mediations, we need the New Jersey Supreme Court to accept and adopt the UMA-NJ “as is”. Under New Jersey’s constitutional separation of powers doctrine, the Court gets the last word on the practice of law, including policies affecting civil and divorce mediation. Our Supreme Court has been extremely supportive of mediation policy and practice for the past twenty years. We are optimistic that the Justices and the Committees that report to them will endorse UMA-NJ as court policy. Just as the Rules of Evidence are a joint effort by the Legislature and the Court, the UMA-NJ should represent joint policy decisions of the same branches of government.

Absent UMA-NJ, New Jersey’s citizens would have been left with a crazy-quilt regulatory system, where up to 900 state and municipal judges could make inconsistent and case-by-case policy choices. Without legislation, it would have taken a decade or more to develop appropriate Appellate Division and Supreme Court policies, at tremendous time, use of resources, and frustration for those caught in the litigation web. UMA-NJ makes the right public policy decisions, and does so up front.

Without UMA-NJ, there also was no way for the government to regulate private sector mediation, which is not subject to the court system’s oversight, and where mediation’s use has dramatically increased in the past decade.

There is a crying need for efficient and less expensive conflict resolution in many dispute sectors: medical malpractice, environmental conflicts, products liability cases, local government disputes, public contract cases, divorce and family-type disputes (including civil union conflicts), and labor and employment matters. UMA-NJ will underscore the need for those complex dispute types to receive appropriate mediated attention, both within the court system and privately.

New Jersey was the third state to pass the UMA, behind Nebraska and Illinois. Ohio’s Legislature just passed the UMA last week. According to the NCCUSL website, www.nccusl.org, the UMA in 2004 was introduced before the governing bodies of the District of Columbia, Massachusetts, New York, and Vermont, in addition to New Jersey and Ohio.

NCCUSL expects that a dozen state governing bodies will consider the UMA in 2005. Given how smoothly and successfully the UMA moved through New Jersey’s system, other states will likely look to New Jersey as a role model.

I believe that UMA-NJ will modernize and strengthen New Jersey’s mediation and dispute resolution practices across the board. Senator Bob Martin and Assemblywoman Linda Greenstein, legislative sponsors, are to be commended for their support. They and others who supported UMA-NJ should be proud of the vital benefits UMA-NJ will provide to all of New Jersey’s citizens, especially disputing parties, their lawyers, mediators, and trial judges.

Using mediation, New Jersey residents have begun to appreciate significant savings of time and money and, with any luck, the ability to stay out of court. However, sometimes mediation fails or ancillary litigation starts, whether civil or criminal. When former mediation participants are called to court as parties or witnesses, our citizens should now have confidence that, except in narrowly defined circumstances, their mediation communications will be treated as sacrosanct.