Consistent with New Jersey’s strong public policy favoring the settlement of disputes through the use of ADR procedures, courts and parties are increasingly turning to mediation with the goal of resolving disputes in a more efficient and less adversarial manner. In order to encourage candor in mediation proceedings, New Jersey has adopted a broad and robust mediation privilege that protects against the disclosure of mediation communications in later legal proceedings. However, the privilege is not absolute and can be waived, so it is important for practitioners to understand how the privilege operates, how the privilege can be waived and what steps can be taken to prevent the disclosure of mediation communications. This article offers a brief primer on these issues and examines how the mediation privilege impacts attempts to enforce alleged oral settlement agreements reached at mediation.
Statutory Framework
In New Jersey, mediation communications are protected from disclosure by both Rule 1:40(c) and the more comprehensive Uniform Mediation Act (UMA), N.J.S.A. 2A:23C-1 to -13. The UMA provides that, unless a statutory exception applies (N.J.S.A. 2A:23-6), the following privileges apply to mediation communications:
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