Because of my work on the Rule 1:40-12 Roster of Civil, General Equity and Probate Action Mediators in New Jersey (and recent mediation training in New York), I was reviewing the New Jersey Uniform Mediation Act this week. I wanted to stress something to my readers that may or may not be clear: (almost) everything that happens during mediation is confidential and privileged. It’s truly a safe space. In this blog post I will be citing New Jersey rules. The law governing mediation and other types of Alternative Dispute Resolution (“ADR”) does vary from state to state so my readers should consult an attorney licensed in that jurisdiction for specific questions.
Like the attorney-client privilege, a “mediation communication” is privileged pursuant to New Jersey Statutes Annotated (“NJSA”) Section 2A:23C-4(a). A “mediation communication” includes both verbal and non-verbal communication. Mediators, mediation parties and nonparty participants can assert the privilege, see id. at Section 2A:23C-4(b), unless the parties expressly waive the privilege or the person intentionally uses mediation to plan/attempt/conceal a crime, see id. at Section 2A:23C-5.
The exceptions to the privilege are as follows:
1. Signed written agreement by all parties;
2. Mediation required by law to be open to the public (rare);
3. Threat/statement of a plan to inflict bodily injury or commit a crime;
4. Mediation was intentionally used to plan/attempt/conceal a crime;
5. Proof of a claim/complaint (or defense thereof) against a mediator arising out of mediation;
6. For the exception of the mediator, proof of a claim/complain (or defense thereof) of professional misconduct or malpractice against a mediation party, nonparty participant or representative (e.g., attorney for the party) occurring during mediation; and,
7. Proof of child abuse or neglect (or defense thereof) in a proceeding in which the Division of Youth and Family Services in the Department of Human Services is a party (unless party in mediation).
See id. at section 2A:23C-6.
Additionally, mediation communications are confidential to the extent agreed by the parties or provided by law (unless the mediation is open to the public). Although many non-lawyers use the terms interchangeably, there are differences between privilege and confidentiality. I hope to delve into in a future blog post.
I realize that the law tends to muck things up with exceptions to the rule and exceptions to the exceptions to the rule (that’s why you pay attorneys the big bucks…) but the take home point is this: (like Vegas) what happens in mediation (usually) stays in mediation.
If you are a party to a dispute, I encourage you to investigate mediation and/or arbitration options in your state as an alternative to litigation. I am also available for private mediation sessions in a myriad practice areas including food/agriculture, animal, environmental, business and family/divorce.