SENATE, No. 337

 

STATE OF NEW JERSEY

 

Introduced Pending Technical Review by Legislative Counsel

 

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

 

 

By Senators MARTIN and CAFIERO

 

 

An Act establishing a court-referred family mediation program and supplementing Title 2A of the New Jersey Statutes.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. This act shall be known and may be cited as the "Family Mediation Reform Act of 1995."

 

    2. The Legislature finds and declares that:

    a. Mediation is a cooperative process by which parties are assisted in formulating an agreement by a mediator;

    b. It is a process wherein the decision-making authority rests with the parties;

    c. It is in the best interest of a child to encourage mediated resolution of disputes over child custody, visitation, or support;

    d. It is the intent of this legislation that the State establish a statewide mediation program designed to implement mediation of family matters.

 

    3. As used in this act:

    "Mediation" means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. Mediation includes "family mediation" which means mediation of family matters involving dissolution of marriage, property division, shared or sole parental responsibility or custody, visitation or support.

    "Mediator" means a person who is qualified, trained and certified in accordance with the Rules of Court to assist parties in identifying issues, fostering joint problem-solving, and exploring settlement alternatives.

 

    4. a. The court may refer to mediation all or any part of an action for divorce, nullity, separate maintenance or support, where the custody, visitation or support of a minor child is an issue.

    b. The court shall not refer any case to mediation where it finds that there has been a significant history of domestic violence which would compromise the mediation process.

    c. If a party objects, in writing, to attending the mediation session the matter shall not be referred to mediation by the court.

    d. Presence of attorneys at the mediation session is not required. Attorneys for each party may attend the mediation session and privately communicate with their clients.

    e. The mediator may terminate the mediation if the mediator determines that mediation efforts are unsuccessful.

    f. Once the parties have successfully completed the mediation process and an agreement is reached, the agreement shall be reduced to writing and submitted to the court. The court may approve or reject the mediation agreement. If the court rejects the mediation agreement the court shall state its reasons on the record. If the court approves the mediation agreement the court shall incorporate the terms of the agreement in the final order.

    g. If the parties do not reach an agreement, the mediator shall notify the court of that result and the matter shall be referred back to the court for formal disposition.

 

    5. Notwithstanding any other provision of law to the contrary, no person serving as a mediator pursuant to P.L. , c. (C. ) (now pending before the Legislature as this bill) shall be liable for damages resulting from any exercise of judgment or discretion in connection with the person's duties unless the actions evidence a reckless disregard for the duties imposed by the position. Nothing in this section shall be deemed to grant immunity to any mediator causing damage by that person's wilful, wanton or grossly negligence act of commission or omission.

 

    6. Notwithstanding any other provision of law to the contrary, all oral and written communications made during the mediation proceeding, other than an executed settlement agreement, shall be confidential and shall not be admissible as evidence in any court proceeding.

 

    7. The Supreme Court of New Jersey may adopt Rules of Court appropriate or necessary to effectuate the purpose of this act. The Supreme Court may establish minimum standards and procedures for certification which shall include the qualifications, professional conduct, discipline and training for mediators. The Supreme Court may set fees to be charged to applicants for certification and renewal


of certification. The revenues generated from these fees shall be used to offset the costs of administration of the certification process.

 

    8. This act shall take effect immediately.

 

 

STATEMENT

 

    This bill would establish a court-referred family mediation program. The bill provides that the court may refer the parties in a divorce action to mediation. Since some matters do not necessarily lend themselves to mediation, the bill provides that if the court determines that there is a history of domestic violence which compromises the mediation process the case would not be referred to mediation. In addition, if any party objects to attending the mediation session the matter would not be referred to mediation. The bill also provides that the mediator would be authorized to terminate the session if the mediation efforts are unsuccessful.

    Once the parties have completed the mediation process and an agreement is reached the agreement would be reduced to writing and submitted to the court. The court may then approve or reject the agreement. If the agreement is approved the terms of agreement would be incorporated into the final order. If an agreement is rejected the court would state its reasons on the record. If an agreement is not reached the matter would be referred to the court for formal disposition.

    The bill also provides that no person serving as a mediator would be liable for damages resulting from any exercise of judgment or discretion in connection with the person's duties. In addition, all communication made during the mediation, other than the agreement, would be considered confidential and would not be admissible as evidence in any court proceeding.

    The Supreme Court may adopt Rules of Court appropriate or necessary to effectuate the purpose of the bill.

    This bill embodies recommendation 5 of the report of the Commission to Study the Law of Divorce, issued April 18, 1995.

 

 

 

Establishes a court-referred family mediation program.