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Court Rules for Divorce Mediation in New Jersey

The Superior Court of New Jersey has adopted rules concerning mediation.

The content of those rules is set forth so that you can have a full and fair understanding of what to expect from a qualified mediator.

Of particular interest to Family Law cases are rules:
  • 1:40-4(b) - Compensation
  • 1:40-4(c) - Confidentiality
  • 1:40-4(f) - Termination
  • 1:40-5. Mediation of Custody and Parenting Time Actions
  • 1:40-12(a)(2) - Mediator Qualifications: Custody and Parenting Time Mediators.
  • 1:40-12(b) - Mediator Training Requirements
Purpose, Goals - Rule 1:40-1
Modes and Definitions - Rule 1:40-2
Organization and Management- Rule 1:40-3
Mediation - General Rules - Rule 1:40-4
Mediation of Custody - Rule 1:40-5
Mediation of Other Matters - Rule 1:40-6
Special Civil Part - Rule 1:40-7
Municipal Court - Rule 1:40-8
Civil Arbitration - Rule 1:40-9
Relaxation of Rules - Rule 1:40-10
Non-Court Resolution - Rule 1:40-11
Qualifications - Rule 1:40-12

All mediators used in cases handled by our office are Rule 1:40 Qualified Mediators. Also, if you request a referral for mediation outside of our geographic area, only Qualified Mediators pursuant to Rule 1:40 are referred.


RULE 1:40. COMPLEMENTARY DISPUTE RESOLUTION PROGRAMS

1:40-1. Purpose, Goals
Complementary Dispute Resolution Programs (CDR) provided for by these rules are available in the Superior Court and Municipal Courts and constitute an integral part of the judicial process, intended to enhance its quality and efficacy. Attorneys have a responsibility to become familiar with available CDR programs and inform their clients of them.


1:40-2. Modes and Definitions of Complementary Dispute Resolution
Complementary Dispute Resolution Programs (CDR) conducted under judicial supervision in accordance with these rules, as well as guidelines and directives of the Supreme Court, and the persons who provide the services to these programs are as follows:

  1. "Adjudicative Processes" means and includes the following:
    1. Arbitration: A process by which each party and/or its counsel presents its case to a neutral third party, who then renders a specific award. The parties may stipulate in advance of the arbitration that the award shall be binding. If not so stipulated, the provisions of Rule 4:21A-6 (Entry of Judgment; Trial De Novo) shall be applicable.
    2. Settlement Proceedings: A process by which the parties appear before a neutral third party or panel of such neutrals, who assists them in attempting to resolve their dispute by voluntary agreement.
    3. Summary Jury Trial: A process by which the parties present summaries of their respective positions to a panel of jurors, which may then issue a non-binding advisory opinion as to liability, damages, or both.
  2. "Evaluative Processes" means and includes the following:
    1. Early Neutral Evaluation (ENE): A pre-discovery process by which the attorneys, in the presence of their respective clients, present their factual and legal contentions to a neutral evaluator, who then provides an assessment of the strengths and weaknesses of each position and, if settlement does not ensue, assists in narrowing the dispute and proposing discovery guidelines.
    2. Neutral Fact Finding: A process by which a neutral, agreed upon by the parties, investigates and analyzes a dispute involving complex or technical issues, and who then makes non-binding findings and recommendations.
  3. "Facilitative Process" means and includes mediation, which is a process by which a mediator facilitates communication between parties in an effort to promote settlement without imposition of the mediator's own judgment regarding the issues in dispute.
  4. "Hybrid Process" means and includes:
    1. Mediation-arbitration: A process by which, after an initial mediation, unresolved issues are then arbitrated.
    2. Mini-trial: A process by which the parties present their legal and factual conditions to either a panel of representatives selected by each party, or a neutral third party, or both, in an effort to define the issues in dispute and to assist settlement negotiations. A neutral third party may issue an advisory opinion, which shall not, however, be binding, unless the parties have so stipulated in writing in advance.
  5. "Other CDR Programs" means and includes any other method or technique of complementary dispute resolution permitted by guideline or directive of the Supreme Court.
  6. "Neutral": A "neutral" is an individual who provides a CDR process. A "qualified neutral" is an individual included on any roster of neutrals maintained by the Administrative Office of the Courts or an Assignment Judge. Neutral evaluators, neutral fact finders, and settlement program panelists are not required to comply with the training requirements of Rule 1:40-12 or to be on any roster of neutrals maintained by the Administrative Office of the Courts or an Assignment Judge.


1:40-3. Organization and Management

  1. Vicinage Organization and Management. Pursuant to these rules and Supreme Court guidelines, the Assignment Judge of each vicinage shall have overall responsibility for CDR programs, including their development and oversight, continuing relations with the Bar to secure the effectiveness of these programs, and mechanisms to educate judges, attorneys, staff, and the public on the benefits of CDR. The Assignment Judge shall appoint a CDR coordinator to assist in the oversight, coordination and management of the vicinage CDR programs. The Assignment Judge shall maintain, pursuant to these rules, all required rosters of neutrals except the roster of statewide civil, general equity, and probate action mediators.
  2. Statewide Organization and Management. The Administrative Office of the Courts shall have the responsibility (1) to promote uniformity and quality of CDR programs in all vicinages, (2) to monitor and evaluate vicinage CDR programs and assist CDR Coordinators in implementing them; (3) to serve as a clearinghouse for ideas, issues, and new trends relating to CDR, both in New Jersey and in other jurisdictions; (4) to develop CDR pilot projects to meet new needs; (5) to monitor training and continuing education programs for neutrals; and (6) to institutionalize relationships relating to CDR with the bar, universities, the Marie L. Garibaldi ADR Inn of Court, and private providers of CDR services. The Administrative Office of the Courts shall maintain the statewide roster of civil, general equity, and probate action mediators.


1:40-4. Mediation - General Rules

  1. Referral to Mediation. Except as otherwise provided by these rules, a Superior Court or Municipal Court judge may require the parties to attend a mediation session at any time following the filing of a complaint.
  2. Compensation and Payment of Mediators. Parties in Superior Court, except the Special Civil Part, assigned to mediation pursuant to this rule shall equally share the fees and expenses of the mediator on an ongoing basis, subject to court review and allocation to create equity. Any fee or expense of the mediator shall be waived in cases, as to those parties exempt, pursuant to Rule 1:13-2(a). A party may opt out of the mediation process after the mediator has expended three hours of service, which shall include preparation and the first mediation session, and which shall be at no cost to the parties. Fees shall be as determined by the mediator and the parties. Failure to pay the mediator may result in an order by the court to pay and imposing appropriate sanctions.
  3. Confidentiality. Except as otherwise provided by this rule and unless the parties otherwise consent, no disclosure made by a party during mediation shall be admitted as evidence against that party in any civil, criminal, or quasi-criminal proceeding. A party may, however, establish the substance of the disclosure in any such proceeding by independent evidence. A mediator has the duty to disclose to a proper authority information obtained at a mediation session on the reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm. No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter. A lawyer representing a client at a mediation session shall be governed by the provisions of RPC 1.6.
  4. Limitations on Service as a Mediator.
    1. Mediators shall be qualified and trained in accordance with the provisions of Rule 1:40-12.
    2. No elected official, or candidate for elected office, shall serve as a CDR mediator within the geographic boundary of the elected office.
    3. The approval of the Assignment Judge is required for service as a mediator by any of the following:
      1. appointed public officials;
      2. police or other law enforcement officers employed by the State or any local unit of government;
      3. employees of any court;
      4. government officials or employees whose duties involve regular contact with the court in which they serve; or
      5. elected officials, or candidates for elected office, who wish to serve outside the geographic boundaries of the elected office.
    4. The Assignment Judge shall also have the discretion to require prior review and approval of the Supreme Court of prospective mediators whose employment or position appears to the Assignment Judge to require such review and approval.
  5. Conduct of Mediation Proceedings. Mediation proceedings shall commence with an opening statement by the mediator describing the purpose and procedures of the process. Non-party witnesses may be heard in the discretion of the mediator, and other non-parties shall be permitted to attend only with the consent of the parties and the mediator. Multiple sessions may be scheduled. Attorneys and parties have an obligation to participate in the mediation process in good faith in accordance with program guidelines.
  6. Termination of Mediation.
    1. The mediator or a participant may terminate the session if (A) there is an imbalance of power between the parties that the mediator cannot overcome, (B) a party challenges the impartiality of the mediator, (C) there is abusive behavior that the mediator cannot control, or (D) a party continuously resists the mediation process or the mediator.
    2. The mediator shall terminate the session if (A) there is a failure of communication that seriously impedes effective discussion, (B) the mediator believes a party is under the influence of drugs or alcohol, or (C) the mediator believes continued mediation is inappropriate or inadvisable for any reason.
  7. Final Disposition. If the mediation results in the parties' total or partial agreement, it shall be reduced to writing and a copy thereof furnished to each party. The agreement need not be filed with the court, but if formal proceedings have been stayed pending mediation, the mediator shall report to the court whether agreement has been reached. If an agreement is not reached, the matter shall be referred back to court for formal disposition.


1:40-5. Mediation of Custody and Parenting Time Actions

  1. Screening and Referral. All complaints or motions involving a custody or parenting time issue shall be screened to determine whether the issue is genuine and substantial, and if such a determination is made, the matter shall be referred to mediation for resolution in the child's best interests. However, no matter shall be referred to mediation if there is in effect a preliminary or final order of domestic violence entered pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et. seq.). In matters involving domestic violence in which no order has been entered or in cases involving child abuse or sexual abuse, the custody or parenting time issues shall be referred to mediation provided that the issues of domestic violence, child abuse or sexual abuse shall not be mediated in the custody mediation process. The mediator or either party may petition the court for removal of the case from mediation based upon a determination of good cause.
  2. Conduct of Mediation. In addition to the general requirements of Rule 1:40-4, the parties shall be required to attend a mediation orientation program and may be required to attend an initial mediation session. Mediation sessions shall be closed to the public. The mediator and the parties should consider whether it is appropriate to involve the child in the mediation process. The mediator or either party may terminate a mediation session in accordance with the provisions of Rule 1:40-4(f).
  3. Mediator Not to Act as Evaluator. The mediator may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time.


1:40-6. Mediation of Civil, Probate, and General Equity Matters
The CDR program of each vicinage shall include mediation of civil, probate, and general equity matters, pursuant to rules and guidelines approved by the Supreme Court.

  1. Referral to Mediation. The court may, sua sponte and by written order, refer any civil, general equity, or probate action to mediation for an initial three hours, which shall include an organizational telephone conference, preparation by the mediator, and the first mediation session. In addition, the parties to an action may request an order of referral to mediation and may either select the mediator or request the court to designate a mediator from the court-approved roster.
  2. Designation of Mediator. If the parties have not selected the mediator prior to entry of the mediation referral order, the court shall in its referral order designate a mediator from the court-approved roster. The parties may, however, within 14 days after entry of the mediation referral order stipulate in writing to the designation of a different mediator. Within that fourteen-day period, the stipulation shall be filed with the Civil CDR Coordinator and a copy thereof served upon the mediator designated by the mediation referral order. A mediator designated by such stipulation shall comply with all terms and conditions set forth in the mediation referral order.
  3. Stay of Proceedings. The court may, in the mediation referral order, stay discovery for a specific or an indeterminate period.
  4. Withdrawal and Removal from Mediation. A motion for removal from mediation shall be filed and served upon all parties within 10 days after the entry of the mediation referral order and shall be granted only for good cause. Any party may withdraw from mediation after the initial three hours provided for by paragraph (a) of this rule. The mediation may, however, continue with the consent of the mediator and the remaining parties if they determine that it may be productive even without participation by the withdrawing party.
  5. Mediation Statement. The mediator shall fix a date not to exceed 30 days after the entry of the mediation referral order for the exchange by the parties and service upon the mediator of a brief statement of facts and proposals for settlement not exceeding ten pages. All documents prepared for mediation shall be confidential and subject to Rule 1:40-4(c).
  6. Procedure Following Mediation. Promptly upon termination of the mediation process, the mediator shall report to the court in writing as to whether or not the action or any severable claim therein has been settled.
  7. Compensation of Mediators. Mediators shall be compensated as provided by Rule 1:40-4(b).


1:40-7. Complementary Dispute Resolution Programs in the Special Civil Part

  1. Small Claims. Each vicinage shall provide a small claims settlement program in which (1) law clerks from all the divisions who have been trained in settlement techniques and as mediators pursuant to R. 1:40-12(b)(6), and other employees and volunteers who have been trained in settlement techniques and as mediators pursuant to R. 1:40-12(b)(1), serve as trained neutrals who help litigants settle their cases, and (2) cases that are not settled are tried on the same day, if possible. The training requirements apply to law clerks but not to other attorneys.
  2. Tenancy Actions. If complementary dispute resolution programs are used for tenancy actions, cases that are not settled shall be tried on the same day, if possible.
  3. Other Actions for Damages. For other Special Civil Part actions for damages each vicinage shall establish a settlement program that does not include arbitration in which there is one settlement event scheduled to occur on the trial date.


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1:40-8. Mediation of Minor Disputes in Municipal Court Actions

  1. Referral. A mediation notice may issue pursuant to Rule 7:8-1 requiring the parties to appear at a mediation session to determine whether mediation pursuant to these rules is an appropriate method for resolving the minor dispute. No referral to mediation shall be made if the complaint involves (1) serious injury, (2) repeated acts of violence between the parties, (3) clearly demonstrated psychological or emotional disability of a party, (4) incidents involving the same persons who are already parties to a Superior Court action between them, (5) matters arising under the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.), or (6) a violation of the New Jersey Motor Vehicle Code (Title 39).
  2. Appointment of Mediators. A municipal court mediator shall be appointed by the Assignment Judge who may, either sua sponte or on request of the municipal court judge, remove a mediator upon the determination that the individual is unable properly to perform the mediator's functions.


1:40-9. Civil Arbitration
The CDR program of each vicinage shall include arbitration of civil actions in accordance with Rule 4:21A.


1:40-10. Relaxation of Court Rules and Program Guidelines
These rules, and any program guidelines may be relaxed or modified by the court in its discretion if it determines that injustice or inequity would otherwise result. Factors to be considered in making that determination include but are not limited to as (1) the incapacity of one or more parties to participate in the process, (2) the unwillingness of one or more parties to participate in good faith, (3) the previous participation by the parties in a CDR program involving the same issue, and (4) any factor warranting termination of the program pursuant to Rule 1:40-4(f).


1:40-11. Non-Court Dispute Resolution
With the approval of the Assignment Judge or the Assignment Judge's designee, the court, while retaining jurisdiction, may refer a matter to a non-court administered dispute resolution process on the condition that any such mediation process will be subject to the confidentiality provisions of Rule 1:40-4(c). The Assignment Judge or designee may approve such referral upon the finding that it will not prejudice the interests of the parties.


1:40-12. Qualification and Training Requirements of Court Mediators and Arbitrators

  1. Mediator Qualifications
    1. Generally. Unless otherwise specified by these rules, no special occupational status or educational degree is required for mediator service and mediation training. An applicant for listing on a roster of mediators maintained by either the Administrative Office of the Courts or the Assignment Judge shall, however, certify to good professional standing. An applicant whose professional license has been revoked shall not be placed on the roster, or if already on the roster shall be removed therefrom.
    2. Custody and Parenting Time Mediators. The Assignment Judge, upon recommendation of the Presiding Judge of the Family Part, may approve persons or agencies to provide mediation services in custody and parenting time disputes if the mediator meets the following minimum qualifications: (A) a graduate degree or certification of advanced training in a behavioral or social science; (B) training in mediation techniques and practice as prescribed by these rules; and (C) supervised clinical experience in mediation, preferably with families. In the discretion of the Assignment Judge relevant experience may be substituted for either a graduate degree or certification, or clinical experience, or both.
    3. Civil, General Equity, and Probate Action Mediators. Mediator applicants for civil, general equity, and probate actions shall have at least five years of professional experience in the field of their expertise, as well as either an advanced degree or an undergraduate degree, coupled in both cases with mediation experience. For purposes of this rule, an advanced degree means a juris doctor or equivalent; an advanced degree in business, finance, or accounting, an advanced degree in the field of expertise in which the applicant will practice mediation, for example, engineering, architecture, or mental health; or state licensure in the field of expertise, for example, certified public accountant, architect, or engineer. For purposes of this rule, mediation experience which, together with an advanced degree, will qualify an applicant means evidence of successful mediation of a minimum of two cases within the last year, provided however that mediation experience is waived if mediation training was completed within the last five years. For purposes of this rule, mediation experience which, together with an undergraduate degree, will qualify an applicant means evidence of successful mediation of a minimum of ten cases involving subject matter otherwise cognizable in the Superior Court within the last five years.
    4. Special Civil Part Mediators. In addition to qualified neutrals on the civil roster, those judicial law clerks, court staff, and volunteers who have completed a course of mediation training approved by the Administrative Office of the Courts may mediate Small Claims actions. In the discretion of the Assignment Judge, such persons may also mediate landlord-tenant disputes and other Special Civil Part actions.
    5. Municipal Court Mediators. Municipal Court mediators shall be approved for that position by the Assignment Judge for the vicinage in which they intend to serve on recommendation of the Municipal Court judge, stating the applicant's qualifications. In considering the recommendation, the Assignment Judge shall review the applicant's general background, suitability for service as a mediator, and any mediation training the applicant may have completed.
  2. Mediator Training Requirements
    1. General Provisions. Unless waived pursuant to subparagraph (2), all persons serving as mediators shall have completed the basic dispute resolution training course as prescribed by these rules and approved by the Administrative Office of the Courts as follows: mediators on the civil, general equity, and probate roster of the Superior Court, volunteer mediators in the Special Civil Part, and Municipal Court mediators shall have completed 18 classroom hours of basic mediation skills complying with the requirements of subparagraph (4) of this rule, Mediators on the civil, general equity and probate roster of the Superior Court shall have completed 18 classroom hours of basic mediation skills complying with the requirements of subparagraph (4) of this rule and at least five hours spent co-mediating with an experienced mediator on the roster in at least two cases in the Superior Court. Family Part mediators shall have completed a 40-hour training program complying with the requirements of subparagraph (5) of this rule; and judicial law clerks shall have successfully completed 12 classroom hours of basic mediation skills complying with the requirements of subparagraph (6) of this rule.
    2. Consideration of Prior Training. The Administrative Office of the Courts or the Assignment Judge, as appropriate, may waive these basic training requirements for mediators already serving prior to the effective date of this rule upon a determination that the mediator is qualified to continue to serve by reason of background, training, relevant educational and professional experience, and any other relevant factor.
    3. Continuing Training. Commencing in the year following the completion of the basic training course or the waiver thereof, all mediators shall attend four hours of continuing education and shall file with the Administrative Office of the Courts or the Assignment Judge, as appropriate, an annual certification of compliance. To meet the requirement, this continuing education should cover at least one of the following: (A) reinforcing and enhancing mediation and negotiation concepts and skills, (B) ethical issues associated with mediation practice, or (C) other professional matters related to mediation.
    4. Mediation Course Content - Basic Skills. The 18-hour classroom course in basic mediation skills shall, by lectures, demonstrations, exercises and role plays, teach the skills necessary for mediation practice, including but not limited to conflict management, communication and negotiation skills, the mediation process, and addressing problems encountered in mediation.
    5. Mediation Course Content - Family Part Actions. The 40-hour classroom course for family action mediators shall include basic mediation skills as well as at least 22 hours of specialized family mediation training, which should cover family and child development, family law, divorce procedures, family finances, and community resources. In special circumstances and at the request of the Assignment Judge, the Administrative Office of the Courts may temporarily approve for a one-year period an applicant who has not yet completed the specialized family mediation training, provided the applicant has at least three years of experience as a mediator or a combination of mediation experience and service in the Family Part, has co-mediated in a CDR program with an experienced family mediator, and certifies to the intention to complete the specialized training within one year following the temporary approval.
    6. Training Requirements for Judicial Law Clerks. Judicial law clerks serving as mediators shall first have completed either a 12-hour training course prescribed by the Administrative Office of the Courts, an approved course conducted by another institution or agency, or other comparable training. Proof of completion of any training other than the prescribed 12-hour course shall be submitted to the Administrative Office of the Courts for a determination of suitability. The Administrative Office of the Courts shall work with other institutions and agencies to encourage their provision of judicial law clerk mediation training and shall either approve or evaluate that training.
    7. Co-mediation; mentoring; training evaluation. In order to reinforce mediator training, the vicinage CDR coordinator shall, insofar as practical and for a reasonable period following initial training, assign any new mediator who is either an employee or a volunteer to co-mediate with an experienced mediator and shall assign an experienced mediator to mentor a new mediator. Using evaluation forms prescribed by the Administrative Office of the Courts, the vicinage CDR coordinator shall also evaluate the training needs of each new mediator during the first year of the mediator's qualifications and shall periodically assess the training needs of all mediators.
    8. Arbitrator Qualification and Training. Arbitrators serving in judicial arbitration programs shall have the minimum qualifications prescribed by Rule 4:21A-2 and must be annually recommended for inclusion on the approved roster by the local arbitrator selection committee and approved by the Assignment Judge or designee. All arbitrators shall attend periodic training as prescribed by the vicinage Civil Presiding Judge or designee and as approved by the Administrative Office of the Courts.
  3. Training Program Evaluation. The Administrative Office of the Courts shall conduct periodic assessments and evaluations of the CDR training programs to ensure their continued effectiveness and to identify any needed improvements.


 
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