New Jersey Supreme Court Confronts Mediation Confidentiality

By Staff Reporters, ADRWorld.com

(4/1/2005) A case that could have national implications for the Uniform Mediation Act is being debated before the New Jersey Supreme Court, pitting the need for confidentiality in mediation against a defendant's constitutional right to compel testimony in a criminal trial.The court in March heard oral arguments State v. Carl Williams (No. A-61-04), a case that centers on whether mediation confidentiality rules should be relaxed to allow the testimony of a mediator to back up claims of self-defense in a case of aggravated assault, which the defendant argues is essential to proving his innocence.

Although the case was concluded in trial court prior to the enactment of the Uniform Mediation Act (UMA) in New Jersey, it was accepted for review by the high court just a few weeks before the act became law, and both the justices and lawyers consistently referred to the UMA as the case was debated last month.

In Williams, the trial judge refused to allow the testimony of the mediator about statements made in mediation because the state's Complementary Dispute Resolution Program Rule 1:40-4(c) provides that "no disclosure made by a party during mediation shall be admitted as evidence against that party in any civil, criminal, or quasi-criminal proceeding." That ruling was upheld on appeal.

In taking the case to the New Jersey Supreme Court, Williams raised the Sixth Amendment's compulsory process clause, arguing that his rights were violated when the trial judge refused to allow the mediator's testimony.

During oral arguments, Justice James R. Zazzali said "mediation is all about trust and confidence." If an exception were made for mediation in criminal cases, people would be unwilling to participate in the process, he suggested.

But Justice Barry T. Albin pointed out that the UMA contains a provision meant to deal specifically with the situation at issue.

Under Section 6(b) of the act, a party may compel production of communications made in mediation if a court finds that the evidence is not otherwise available and "there is a need for the evidence that substantially outweighs the interest in protecting confidentiality."

Justice Zazzali asked Paul Heinzel, deputy attorney general of the Division of Criminal Justice, Appellate Bureau, if he would accept application of the UMA Section 6(b) balancing test to the case and future similar cases. Heinzel said he would, noting that the U.S. Supreme Court has never struck down a balancing test such as the one contained in the uniform act.

The Committee on Dispute Resolution -- which is comprised of members of the of New Jersey State Bar Association, Association of Mediators, and the Garibaldi ADR Inn of Court -- filed an amicus brief urging the court to adopt the act's test.

This is the first court to face the issue since the inception of the act, and it has the opportunity to craft a ruling that can guide other states that have enacted the UMA, according to Hanan Isaacs, an attorney and ADR neutral in Princeton and a member of the committee.

Rutgers University Law Professor Jonathan Hyman, another member of the committee, said the justices clearly recognized that how they interpret the court rule and any application of the act would be important for how the act is interpreted in the future.

The high court seemed to be looking for some kind of standard that would give guidance to courts on how to balance the constitutional compulsory process right and the need to maintain the confidentiality of mediation communications, he observed.

The committee in its amicus brief said that the UMA's balancing test is not meant to override constitutional rights, but rather to provide a clear test for courts facing a similar issue as the trial judge in Williams, he said.

According to Hyman, the high court has wide powers in dealing with the issue. It could decide the issue exclusively on the court rule, but he said the court is pragmatic and could also adopt the UMA test in general and for the court rule, he added.

Both Hyman and Isaacs said the high court after ruling also could refer the issue to a court committee to draft a clarification to the court rule, incorporating the balancing test.
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