NJ Appellate Court backs mediation model in Landmark Decision

For more information contact:
Katherine Kish, 609-799-8898

Long Awaited Decision Allows Limited Scope of Representation in Mediated Cases

Princeton, NJ (April 23, 2003) The New Jersey Appellate Division affirmed a decision by the lower court upholding mediation and its values of self-determination and dismissing a legal malpractice action against attorney William F. Laufer. The Court, in Lerner v. Laufer, Case A-2079-01, decided April 8, 2003, recognized that parties in mediation embark on a process that differs fundamentally from litigation. By design, the roles of clients and lawyers are not the same in mediation as they would be in a fully adversarial encounter.

According to Princeton attorney/mediator Hanan Isaacs, who argued amicus curiae (friend of the court) on behalf of the New Jersey Association of Professional Mediators (NJAPM),

"The judges understood how important this case was to public policy. They specifically acknowledged that mediation is now an accepted process in the resolution of civil and family disputes and is here to stay." Isaacs went on to say, "Attorneys, mediators and other professionals throughout the country have been waiting for this landmark decision. It is one of the first cases to establish a standard of practice for attorneys, where the parties first use a neutral-third party (a mediator) to structure and monitor the process of decision-making between the parties."

The specific question before the three-judge panel was whether, and to what extent, an attorney may limit the scope of his representation of a matrimonial client in reviewing a mediated property settlement agreement. The Court engrafted the understanding that clients have the right of self-determination in the negotiation process, whether or not it involves mediation. However, consent to limit the scope of representation should be included in a single, specifically tailored retainer agreement. Lerner was represented by Hilton Stein, Esq., and then by Andrew Rubin, Esq. Laufer was represented by Marianne Espinosa Murphy, Esq.

William Laufer ("outside review" counsel) represented Lynne Lerner in her divorce in 1994, following mediation with a New York mediator. At that time, Laufer had recommended that
he undertake discovery. When Lerner declined his recommendation and requested that he just review the mediation agreement, he warned her in writing that he couldn't guarantee that the settlement was in her best interest. In 1999, Lerner filed a malpractice suit, alleging that Laufer violated rules of professional conduct requiring diligence.

In November, 2001, the New Jersey Superior Court entered a summary judgment dismissing
the claim, stating that there was no standard that required a lawyer to launch a full-blown matrimonial case after a client had agreed the work should be restricted to a review of the mediation agreement. Lerner appealed this decision.

NJAPM will be discussing the ruling at the upcoming Alternate Dispute Resolution (ADR) Conference scheduled for Friday, June 13, 2003 at the Sheraton at Woodbridge Place, Iselin, NJ, and at its fall conference. For more information about the ADR conference, please call the New Jersey Institute for Continuing Legal Education at (732) 214-8500.

Hanan M. Isaacs, Past President of the New Jersey Association of Professional Mediators (NJAPM), is a frequent journal author, multi-media contributor and public speaker. He chaired the Dispute Resolution Section of the State Bar Association and served on the New Jersey Supreme Court's Complementary Dispute Resolution Committee. He was recognized as ADR Practitioner of the Year 1999-2000 by the Dispute Resolution Section of the New Jersey State Bar Association (NJSBA) and General Practitioner of the Year 1994 by the NJSBA. He is currently an Adjunct Professor at Rider University in Lawrenceville, New Jersey, where he teaches a course in "Conflict Resolution".

NJAPM, with over 250 members, is the largest statewide mediation organization, and the only New Jersey mediation organization with a structured accreditation process. Members come from a variety of licensed professional backgrounds including law, psychology, social work, engineering, architecture, business, and accounting. For more information regarding NJAPM or the fall workshops, please call 800-981-4800, or visit the NJAPM web site at www.njapm.org.