A tip for parties who want to keep mediated matters private: Don’t permit the mediator to notify the court.
A state appeals court ruled Monday that a will contestant waived the mediation privilege when both he and his opponent authorized the mediator to contact the trial judge with the results.
As such, he could not object to disclosure of the terms that supported the mediator’s oral decision, the Appellate Division held in Rutigliano v. Rutigliano, A-2797-11.
“Adopting [a] contrary view would mean that a party could complete the mediation; agree to all the terms of a settlement, authorize the mediator to notify the court of same, and then use the mediation privilege to prevent enforcement of the settlement,” the panel said, noting the strong public policy favoring settlements.
Vincent Rutigliano sued his brother, James, in 2010, after their mother’s death, claiming that James fraudulently caused her to change her will to leave property to Vincent’s two children. James denied the allegations
Ocean County Superior Court Judge Craig Wellerson ordered them into non-binding mediation.
The mediator, Marlton solo Mark Sander, met with the parties and their lawyers on July 21, 2011, in Princeton.
According to James Rutigliano’s later testimony, they reached an accord after six-and-a-half hours. Sander called them to a conference room and reviewed the terms, and Vincent did not object.
James said the agreement was not put into writing immediately because Vincent said he had to leave for a previous obligation, though he and James both agreed to allow Sander to notify the court of the settlement, which he did.
Wellerson set forth in the case docket that the matter was resolved.
A week later, Vincent’s lawyer, Thomas Kane of Sills Cummis & Gross in Princeton, wrote to James’ lawyer, John Johnson Jr. of Cozen O’Connor in Cherry Hill, stating that Vincent was not under the impression that the deal had been finalized. Kane proposed to settle on new and different terms.
Johnson wrote in reply that the resolution had been final and reiterated the terms. It was the first time they were put in writing.
James moved to enforce the settlement. Vincent opposed, saying there was no written agreement and neither party should be allowed to testify about what transpired during the mediation.
Wellerson held a hearing last December and permitted Vincent and James to testify, saying limited testimony related to the settlement terms — and not the negotiations — would not thwart confidentiality because the conference room discussion occurred after negotiation and agreement.
Vincent did not testify because, he said, doing so would constitute waiver of mediation privilege. He also declined to cross-examine James.
James testified as to the settlement terms, noting that Vincent, after the meeting ended, expressed some concern with the time frame for payment.
Wellerson found James’ testimony credible and held that Vincent authorized the settlement. The absence of a written agreement at the time of the meeting was not fatal, he said. He ordered enforcement and sealed the record.
Vincent appealed, arguing that Wellerson wrongly allowed James to testify.
In Monday’s unpublished opinion, Appellate Division Judges Francine Axelrad and Michael Haas affirmed, finding that Vincent, in objecting to disclosure of the settlement terms in court, “overlooks the fact that both he and [James] authorized the mediator to contact the court.”
They cited Willingboro Mall Ltd. v. 240/242 Franklin Ave. LLC, 421 N.J. Super. 445 (App. Div. 2011), where the court held that mediated oral settlement terms need not be reduced to writing immediately in order to be valid under Rule 1:40-4, which requires them to be in written form.
That panel further held that mediation privilege must be “expressly waived” by all parties under N.J.S.A. 2A:23C-4 and Rule 1:40-4d — which prohibit disclosure of mediation communications to nonparticipants — and found that privilege had been waived, allowing the court to consider the terms.
In the Rutigliano case, both sides agreed to let Sander disclose the settlement, so “there was no bar to either party disclosing the terms of the settlement or, if necessary, going to court to enforce that settlement,” the court ruled.
The court also upheld Wellerson’s factual findings, holding that there was sufficient evidence to conclude that a deal had been reached.
The lack of a written settlement makes no difference, the court added, noting that Vincent had an opportunity to execute a document at Kane’s office, but instead chose to leave.
Johnson, who also handled the appeal, says this case differs from Willingboro Mall because those parties did not dispute that they had waived privilege. Monday’s ruling is expansive of Willingboro Mall because here the waiver was “more subtle,” he adds.
The ruling makes clear that litigants can’t abuse the mediation process, Johnson says. “If you sit down and there’s a meeting of the minds, and it’s clear that there was, you’ve got a deal.”
Kane deferred comment to Sills partner Anthony Argiropoulos, who assisted with the appeal. Argiropoulos did not return a call.
The Supreme Court granted certification in Willingboro Mall last January, but arguments are not yet scheduled, according to the judiciary’s website.