Parties in civil cases can use mediation to reach a solution to their dispute instead of having the court decide the case.
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What is Civil Mediation?
A mediator helps the plaintiff and defendant reach an agreement on some or all of their issues. Mediators do not issue a decision on a case. Their job is to help both parties find common ground for a settlement. Read the brochure and visit our FAQ to discover more about mediation. The Civil Mediation Program Resource Manual contains detailed information about the program.
During mediation, the parties get to:
- Express their feelings and diffuse anger.
- Clear up misunderstandings.
- Discover underlying interests or concerns.
- Find what they agree on.
- Use common ground to reach a solution.
Use the Civil Mediators Search to find a mediator for your case.
Mediation surveys help improve the program. Please complete the survey after your mediation.
CLE Opportunity for Mediators: Mediators can satisfy their 2023 CLE requirement with one of three remote trainings on Sept. 25, Nov. 8, and Dec. 7. The course will be conducted by Eric Max of Max Mediation. The fee for the 4-hour Zoom session is $250. Registration is required. Learn more about the course and register in advance. For more information about mandatory CLE for mediators, see Court Rule 1:40-12(b)(2).
Before mediation, you and the parties need to sign a disclosure. After the mediation session, you need to submit a completion form.
|Disclosure Concerning Continuation of Mediation and Mediation Preparation Time|
How to Become a Mediator
Potential mediators need to apply. Use the application form:
|10523||Application for Admission to the Roster of Mediators|
If approved, you will be added to the Roster of Mediators. All mediators should know the Standards of Conduct.
STANDARDS OF CONDUCT FOR MEDIATORS IN COURT-CONNECTED PROGRAMS
[As Adopted by the Supreme Court January 4, 2000]
Preamble, Scope and Purpose
These standards of conduct are intended to instill and promote public confidence in the mediation process and to be a guide to mediators in discharging their professional responsibilities. Public understanding and confidence are vital to a strong mediation program. Persons serving as mediators are responsible for conducting themselves in a manner that will merit the confidence of parties, members of the bar, and judges. These standards apply to all mediators when acting in state court-connected programs.
Definition of Mediation
Mediation is a process in which an impartial third party neutral (mediator) facilitates communication between disputing parties for the purpose of assisting them in reaching a mutually acceptable agreement. Mediators promote understanding, focus the parties on their interests, and assist the parties in developing options to make informed decisions that will promote settlement of the dispute. Mediators do not have authority to make decisions for the parties, or to impose a settlement.
Principle Of Self-Determination
A mediator shall proceed with the understanding that mediation is based on the fundamental principle of self-determination by the parties. Self-determination requires that the mediation process rely upon the ability of the parties to reach a voluntary agreement without coercion.
- A mediator shall inform the parties that mediation is consensual in nature, that the mediator is an impartial facilitator, that any party may withdraw from mediation at any time as specified in R.1:40-4(a) through (h), and that the mediator may not impose or force any settlement on the parties.
- The primary role of a mediator is to facilitate a voluntary resolution of the dispute, allowing the parties the opportunity to consider all options for settlement.
- Because a mediator cannot personally ensure that each party has made a fully informed choice to reach a particular agreement, a mediator should make the parties aware of the importance of consulting other professionals, where appropriate, to help them make informed decisions.
A mediator shall always conduct mediation sessions in an impartial manner. The concept of mediator impartiality is central to the mediation process. A mediator shall only mediate a dispute in which there is reason to believe that impartiality can be maintained. When a mediator is unable to conduct the mediation in an impartial manner, the mediator must withdraw from the process.
- When disputing parties have confidence in the impartiality of the mediator, the quality of the mediation process is enhanced. A mediator shall therefore avoid any conduct that gives the appearance of either favoring or disfavoring any party.
- A mediator shall guard against prejudice or lack of impartiality because of any party's personal characteristics, background, or behavior during the mediation. A mediator shall advise all parties of any circumstances bearing on possible bias, prejudice, or lack of impartiality.
- Conflicts Of Interest
A mediator must disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator may proceed with the mediation only if all parties consent to mediate. Nonetheless, if the mediator believes that the conflict of interest casts doubt on the integrity of the mediation process, the mediator shall decline to proceed.
- A mediator shall always avoid conflicts of interest when recommending the services of other professionals. If requested, a mediator may provide parties with information on professional referral services or associations that maintain rosters of qualified professionals.
- Related Matters: A mediator who has served as a third party neutral, or any professional member of that mediator's firm/office, shall not subsequently represent or provide professional services for any party to the mediation proceeding in the same matter or in any related matter.
- Unrelated Matters: A mediator who has served as a third party neutral, or any professional member of that mediator's firm/office, shall not subsequently represent or provide professional services for any party to the mediation proceeding in any unrelated matter for a period of six months, unless all parties consent after full disclosure.
A mediator shall only mediate when the mediator possesses the necessary and required qualifications to satisfy the reasonable expectations of the parties.
- A mediator appointed by the court shall have training and education in the mediation process, and shall have familiarity with the general principles of the subject matter involved in the case being mediated.
- A mediator shall have information available for the parties regarding the mediator's relevant training, education, and experience.
- A mediator has an obligation to continuously strive to improve upon his or her professional skills, abilities, and knowledge of the mediation process.
To protect the integrity of the mediation, a mediator shall not disclose any information obtained during the mediation unless the parties expressly consent to such disclosure, or unless disclosure is required by applicable rules or law. A mediator shall not otherwise communicate any information to the court about the mediation, except: (1) whether the case has been resolved in whole or in part; or (2) whether the parties or attorneys appeared at a scheduled mediation.
Consistent with Rule 1:40-4, a mediator shall:
- Preserve and maintain the confidentiality of all mediation proceedings and advise the parties of the Rule's provisions;
- Prior to the commencement of mediation, reach agreement with the parties concerning the limits and bounds of confidentiality and non-disclosure;
- Conduct the mediation so as to provide the parties with the greatest protection of confidentiality afforded by court rule and mutually agreed to by the parties;
- Maintain confidentiality in the storage and disposal of all records and remove all identifying information when such information is used for research, training, or statistical compilations, except minimum identifiers necessary to link research documents; and
- Not use confidential information obtained in a mediation outside the mediation process.
- Quality Of The Process:
A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self-determination by the parties. To further these goals, a mediator shall:
- Work to ensure a quality process and to encourage mutual respect among the parties, including a commitment by the mediator to diligence and to procedural fairness;
- Assess the case and determine that it is appropriate and suitable for continuing the mediation;
- Provide adequate opportunity for each party in the mediation to participate fully in the discussions, and allow the parties to decide when and under what conditions they will reach an agreement or terminate the mediation;
- Not unnecessarily or inappropriately prolong a mediation session if it becomes apparent to the mediator that the case is unsuitable for mediation, or if one or more parties is unwilling or unable to participate in the mediation process in a meaningful manner;
- Only accept cases when the mediator can satisfy the reasonable expectations of the parties concerning the timetable for the process, and not allow a mediation to be unduly delayed by the parties or their representatives; and
- Where appropriate, recommend that parties seek outside professional advice or consider resolving their dispute through arbitration, counseling, neutral evaluation, or other processes.
- Fees For Service:
A mediator shall fully disclose and explain any applicable fees and charges to the parties. Payment for mediation services shall be in accordance with Rule 1:40-4 of the Rules of Court.
- Fees charged by the mediator shall be reasonable, taking into account, among other things, the subject area and the complexity of the matter, the expertise of the mediator, the time required, and the rates customary in the community.
- A mediator shall provide parties with sufficient information about fees in writing at the outset of a mediation.
- A mediator shall not enter into a fee agreement in which the amount of the fee is contingent upon the result of the mediation or the financial amount of the settlement.
Source: Standards adopted by Supreme Court January 4, 2000.
Contact your point person from the Committee for more information
New mediators also need to complete the mentoring program. Mediator Mentors have specific guidelines to follow:
- Following the successful completion of a qualified mediation course of at least forty (40) hours, each applicant for admission to the Roster of Mediators for Civil, General Equity and Probate Cases should attend and observe at least two (2) Superior Court Law Division– Civil Part or Chancery Division–General Equity or Probate Part R. 1:40-4 and -6 mediations of at least five (5) hours total duration. In the event that the two (2) mediation sessions were less than five (5) hours in duration, the applicant, in order to fulfill this requirement, would be required to attend additional sessions until the time requirement is met.
- The mediator mentor shall be an approved mediator on the Roster of Mediators for Civil, General Equity and Probate Cases who shall certify that they have completed at least fifteen (15) mediations under R. 1:40-4 and -6 or comparable mediation program. The approved mediator mentors list shall be published on the Judiciary’s website.
- The mediator mentor, in addition to permitting the applicant to fully observe all aspects of the process, shall meet with the applicant to describe the process and approach in advance of the session and to brief the applicant after the session, intending that this process be part of the education. The mediator mentor shall make available the submissions of the parties and include the applicant on the telephonic conference call.
- The mediator mentor shall, no later than the telephonic conference call, obtain the parties’ consent to the applicant’s attendance during the mediation process. The applicant shall be firmly bound by the standards of mediator conduct, including without limitation, the confidentiality of the process, the conflict-of-interest provisions, as well the reasonable expectation of the parties.
- There shall be no charge to the applicant, nor a fee collected by the applicant, for the sessions.
- Following completion of the required mentoring sessions, the applicant shall certify his/her compliance to the Civil Practice Division of the Administrative Office of the Courts by providing the name(s) of mentor(s), dates of each session, number of hours of each session, and the case names/docket numbers
You can change or update your roster status if anything changes:
Frequently Asked Questions
Q. What is mediation?
Mediation is a dispute resolution process in which an impartial third party - the mediator - facilitates negotiations between the parties to help them reach a mutually acceptable settlement. The major distinction of mediation is that a mediator does not make a decision about the outcome of the case. The parties, with the assistance of their attorneys, work toward a solution with which they are comfortable.
- the result may benefit both or all sides and thus present a win/win solution;
- the outcome can be tailored to meet the unique needs of the case and the particular parties;
- specially trained mediators assist the parties in fashioning more creative solutions not customarily occurring with other CDR techniques; and
- mediation can be a more cost-efficient, less formal and more meaningful alternative to the traditional trial process.
Q. What are some of the advantages of mediation?
Some advantages of mediation include:
Q. How is a mediator selected for a case?
A roster of mediators is maintained by the court system and is posted on the Judiciary’s website at njcourts.gov in a searchable format. When a case is referred to mediation, the parties have 14 days to select a mediator whom they feel is suitable, whether on the roster or not. If the parties do not select a mediator in a timely manner, the court-appointed mediator named in the Order of Referral will serve as the mediator. Court-appointed mediators have been approved for inclusion on a roster after careful screening to ensure that they meet educational, training and mentoring requirements set forth in Court Rule 1:40-12.
Q. What kinds of cases could benefit from mediation?
Mediation has been used successfully in a broad range of cases which exhibit characteristics such as: the parties have an ongoing business or personal relationship or have had a significant past relationship; communication problems exist between the parties; the principal barriers to settlement are personal or emotional; parties want to tailor a solution to meet specific needs or interests; cases involve complex technical or scientific data requiring particular expertise; the parties have an incentive to settle because of time, cost of litigation, or drain on productivity; the parties wish to retain control over the outcome of the case; or the parties seek a more private forum for the resolution of their dispute. While there is not any case type that could not potentially benefit, commercial, construction, environmental, Law Against Discrimination (LAD) cases, and certain General Equity and Probate cases are particularly suited to mediation because they tend to exhibit some of the characteristics described above.
Q. How much does mediation cost?
Under Court Rule 1:40-4(b), any mediator who is on the roster will provide the first two hours on a case, including an initial one hour session, without charge before a party may opt out of mediation. Thereafter, mediators will generally be paid their market rate fee which is to be shared by the parties. Fees will be waived in any case covered by Court Rule 1:13-2(a). Any mediator selected by the parties who is not on the roster may negotiate a fee with the parties from the outset and need not provide the free time.
Q. At what time in the court process should a case be referred to mediation?
The earlier that a case can be referred to mediation, the greater the likelihood that parties can resolve their dispute at a cost savings to themselves and the court. Parties should feel they have enough information to discuss the dispute, which may mean that some information exchange should be completed. Mediators also can help the parties determine how much informal discovery is needed. Even if discovery has been completed, settlement negotiations have been unsuccessful, or the parties are close to a trial date, the mediation process may still help the parties reach a mutually acceptable agreement.
Q. What happens in mediation?
There are certain ground rules the mediator will ask participants to follow. The first, and most important, is that with a few exceptions covered in Court Rules 1:40-4(c) and (d), what goes on in mediation is confidential. That is, what is said in mediation cannot be discussed outside of the mediation process unless the parties consent. Prior to mediation, the mediator will usually ask the attorneys to prepare a brief summary of the issues in dispute. Then, at the mediation session, the mediator will ask attorneys and their clients to make brief presentations about the issues from their own perspectives. After that, the mediator will help the parties to explore areas of possible compromise and to develop a solution that meets everyone’s interests. Sometimes, the mediator may meet with the parties separately for a private discussion that might help move the parties toward a resolution. If an agreement is reached, a document will be prepared detailing the terms of the agreement. Thereafter, the mediator will notify the court that the case can be dismissed. If the case is not resolved, the mediator will advise the court, and the case will remain on the docket.
Q. What if the case is not resolved in mediation?
Sometimes the parties are unable to reach agreement or only agree on certain aspects of the dispute. If certain aspects of the dispute remain unresolved, the parties can submit that portion to an expert for an opinion (binding or non-binding) or use some other creative means. The case also can be returned to court and continue on track towards trial. Even in these cases, the mediation process may have helped the parties clarify their positions and also move toward settlement.
Q. What about pretrial discovery?
Generally, pretrial discovery is not stayed while a case is in mediation. The case will be placed on the trial calendar at the end of the discovery period. If, however, the court determines that a stay of discovery is necessary, the court shall only provide for a stay of discovery by court order. Even if formal discovery is stayed, the mediator is authorized to facilitate the informal exchange of information materials needed to enhance the effectiveness of the mediation process.
Q. What are the roles of counsel and litigants in mediation?
The goal of mediation is to reach an amicable resolution. Attorneys and parties are required to make a good faith effort to cooperate with the mediator and engage in constructive dialogue toward this end. Attorneys should prepare their clients prior to mediation by explaining what will happen, and particularly what the roles of both attorneys and clients are. They should also agree on who will be the principal spokesperson in presenting the party's view early in the mediation session. Throughout the process, attorneys act as advocates for their clients' interests. For example, attorneys may make brief opening summaries of the issues as they see them, but clients should also be given an opportunity to speak. In mediation, understanding is often promoted when the parties explain their positions directly to each other. When it comes to discussing terms of settlement, the litigants must play an active part, for it is their case and their settlement. During this process, attorneys should provide counsel on the advisability of settlement options, suggest options and be available for any further consultation with their clients.
Q. How does a case get into mediation?
Appropriate cases for referral to mediation can be identified by judges, court staff, or the parties themselves, at any point in the life of a case. A form of order for referral is prepared and signed by the judge. Parties desiring their case to be referred to mediation should contact the Civil Division Manager in the county in which the case is pending.