In Lehr v. Affilito 382 N.J. Super. 376 (App. Div. 2006) the Appellate Division reinforced that mediation is confidential and that a mediator cannot be called as a witness to testify about communications exchanged during the mediation process in a subsequent proceeding. Id. at 391.
In Lehr, the parties attending several sessions of court ordered economic mediation after they were unable to settle their divorce case during the Matrimonial Early Settlement Panel. Id. at 379. When mediation was concluded, the parties disagreed over whether a binding settlement had been reached. Ibid. To determine whether the parties had reached an agreement, the trial court held a hearing, called a harrington hearing. Ibid. At the harrington hearing, the mediator was called to testify and a letter written by the mediator was introduced as evidence. Ibid. The Appellate Division found that the mediators testimony, as well as the introduction of the mediator’s letter violated R. 1:40(c). Id. at 396.
Citing to Issacson v. Issacson, 348 N.J. Super. 560, 575 (App. Div. 2003), the Appellate Division stated “If mediation confidentiality is important, the appearance of mediator impartiality is imperative. A mediator, although neutral, often takes an active role in promoting candid dialogue by identifying issues [and] encouraging parties to accommodate each others’ interests. Id. at 2. To perform that function, a mediator must be able to instill the trust and confidence of the participants in the mediation process. That confidence is insured if the participants trust that information conveyed to the mediator will remain in confidence. Neutrality is the essence of the mediation process.” Id. at 394-395.
For questions regarding confidentiality, mediation or any other family law related issue, please contact the attorneys of Ulrichsen Rosen & Freed LLC. Our firm is focused exclusively on the practice of family law and serves clients throughout New Jersey including clients residing in Mercer County, Somerset County, Hunterdon County, Burlington County and Middlesex County.
Additionally, each partner at Ulrichsen Rosen & Freed LLC is qualified to serve as an independent mediator under New Jersey Court Rule 1:40.