Tuesday, March 07, 2006

The Need For Tweaking Can Be Fatal!

The case settled – no it didn’t; yes it did; no; yes; etc.

All mediators should read the New Jersey opinion Lehr v. Afflitto, 2006 N.J. Super. LEXIS 8 (N.J. App. 2006). It’s a long one, full of good lessons on a variety of topics [i.e. mediator’s opening statement, mediator responsibilities to the court, confidentiality and waiver, party remorse, clarity of communication, right to attorney review of agreements, plus more] and well worth reading!

The divorcing couple was ordered to mediation which occurred over two sessions and resulted in a memorandum of understanding [MOU] written by the mediator, who acknowledged “tweaking” was necessary on several issues. The plaintiff represented to the court that the matter was completely settled in mediation. Notwithstanding the fact that everyone agreed that the parties never created nor signed a property settlement agreement, the court used the mediator’s MOU as proof that the divorce was resolved and entered judgment. The defendant appealed.

The Appeals Court held that admission of the mediator’s MOU was error since the parties never waived their right for the mediation to remain confidential. The Appeals Court also held that there was no settlement because certain financial issues were left unresolved, showing a lacking of a final agreement. The mediator did not make a report to the court as required by the court order.

The appellate court viewed the trial judge’s taking testimony from the mediator with disappointment and said that “confidentiality of the mediation process is a matter of great public and systemic importance.” The court identified several bases for confidentiality in mediation: terms in the court order to mediate; the mediator’s oral statements to the parties; applicable court rules; and principles of the Uniform Mediation Act which the court stated was an “appropriate analytical framework” even though the UMA was not in force during the time in question.

So, after reading the opinion, how will you conduct your next mediation?

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