Hanan Isaacs appears before N.J. Senate Judiciary Committee in support of the Uniform Mediation Act. The Judiciary Committee unanimously reports S-679 out of Committee and the bill now goes to the full Senate for consideration.

January 26, 2004

My name is Hanan M. Isaacs, and I am an accredited professional mediator, arbitrator, and trial lawyer with offices in Princeton, New Jersey. I have been practicing law and mediation in New Jersey for 23 years. I served as President of the NJ Association of Professional Mediators from 1999 to 2001, and as Chair of the New Jersey State Bar Association's Dispute Resolution Section from 1996 to 1998.

Please accept this letter as my statement in support of S-679 (Sen. Martin), the Uniform Mediation Act-New Jersey. I appear today on behalf of the New Jersey State Bar Association, the Association for Conflict Resolution-New Jersey Chapter, and the New Jersey Association of Professional Mediators, all of which strongly endorse S-679 in its current form.

With support from the New Jersey labor community, the New Jersey State Bar Association, the conflict resolution community (both arbitrators and mediators), the Law Revision Commission, and the Administrative Office of the Courts, S-679 has been widely hailed as a "good government" bill. It is important to note that no groups or individuals have come forward in opposition to this bill, and for good reason: S-679 is a well crafted bill and, like the Uniform Arbitration Act that preceded it, represents a tremendous step forward for dispute resolution in our State.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) and American Bar Association took 5 years to develop the master version of this bill. S-679 significantly improves upon the national bill and customizes it to New Jersey's unique legal and mediation cultures. The bill expressly exempts from its scope mediation proceedings before the Public Employment Relations Commission and State Board of Mediation. It also makes technical and vocabulary changes to the national bill, to conform to New Jersey law.

Mediation offers disputing parties the possibility of creating a "win-win" negotiated outcome through the services of an impartial third party facilitator. This bill represents a significant change in New Jersey law, which presently provides no confidentiality protection and no statutory privilege regarding mediation communications in the private sector, and only limited protection in the court-referred setting.

S-679, if and when passed, will substantially modernize and strengthen the dispute resolution field here in New Jersey. It sets out clear "rules of the road" for parties and their attorneys, mediators, and trial judges, many of whom have come to expect privacy in the mediation process. The bill generally prevents mediation communications from leaking into later judicial or arbitration proceedings, while simultaneously permitting or requiring use of such communications in narrow circumstances when required by public policy, such as in criminal or child abuse proceedings.

This bill is of vital importance to New Jersey's citizens, many of whom have voiced deep and abiding concern about the costs and delays of the adversarial system. "It takes too long and costs too much," they say. The New Jersey court system has come to rely upon the mediation community to keep cases out of the system, to help clear up case backlogs within the system, and to winnow out newly filed cases that do not require hands-on case management, judicial intervention, or a jury trial. Mediation has become a triage tool that allows judges and trial lawyers to identify and spend time on those cases that will not yield to mediation's "kinder and gentler" style of intervention. However, to build on mediation's phenomenal growth here in New Jersey, parties, their legal counsel, mediators, and trial judges need a uniform set of rules governing confidentiality of communications, so everyone understands the "rules of the road" going into the mediation process, especially if mediation does not work and the parties end up in court.

Without the uniformity provided by S-679, New Jersey citizens would be left with a crazy-quilt regulatory system, where vast numbers of trial judges could make inconsistent, case-by-case, policy decisions. Without legislation, it would take a decade or more to develop appropriate Appellate Division and Supreme Court policies, at tremendous time, use of resources, and frustration for those caught in the tangled litigation web. This legislation takes care of the public policy decision-making right up front.

Another important consideration is that without this legislation, there is no way for the court system to properly regulate private sector mediation, which is not subject to the court's reach, and where mediation's use has dramatically increased in the past decade.
The need for efficient and less expensive conflict resolution exists in many sectors: medical malpractice, environmental cases, local government disputes, public contract cases, family disputes, and labor and employment matters. The New Jersey Legislature should follow the examples set by Nebraska and Illinois, which passed the Uniform Mediation Act in 2003 and consider the UMA to be an important public policy step in the direction of better, faster, and less expensive dispute resolution. According to the NCCUSL website, www.nccusl.org, the UMA in 2004 has already been introduced before the governing bodies of the District of Columbia, Massachusetts, New York, Ohio, and Vermont. It has been endorsed by the American Arbitration Association, Judicial Arbitration and Mediation Service, and the CPR Institute for Dispute Resolution.

As a final product, S-679 represents the product of thousands upon thousands of professional work hours, including arduous discussion, debate, and revision by the national dispute resolution community, followed by extensive redrafting by the New Jersey Law Revision Commission, the New Jersey State Bar Association, and the New Jersey Association of Professional Mediators.

I believe that S-679 will modernize and strengthen New Jersey's mediation and dispute resolution practices in general civil, products liability, environmental, medical malpractice, family, and other disputes. Senator Martin and others who support this bill in both houses of the Legislature should be justly proud of the vital benefits S-679 will provide to all of New Jersey's citizens, who will benefit from more efficient conflict resolution, but especially to directly disputing parties, their lawyers, mediators, and trial judges.

As a mediator, arbitrator, trial lawyer, parent, and teacher, I am both humbled and gratified to have participated in the creation of S-679. I urge all of you to support this "good government" bill. Your constituents will remember and appreciate you for saving them time and money and for keeping them out of court as much as possible.