News & Noteworthy

Authored - NJ Contract Law Update - Mediation Settlement Agreements Under Willingboro
JANUARY 09, 2014 | Windels Marx - Commercial Litigation

Earlier this year (at 215 N.J. 242), our Supreme Court addressed Willingboro v. 241/242 Franklin Avenue. The Appellate Division's Opinion in that case had enforced an oral mediation settlement, where confidentiality was waived.

Simply stated, the Supreme Court held that absent consent, oral mediation-born settlement agreements will no longer be enforced. Rather, the settlement must either be in writing signed by the parties, or electronically verified (e.g., tape recorded). The Court indicated a desire not to involve mediators in a contested process, nor to have collateral litigation relating to the mediation.

Essentially, the ruling was applied prospectively, since the Court found that the unique facts in Willingboro warranted the enforcement of that mediation agreement under the then-existing rules, and/or under the consent theory.

Going forward, the practitioner must respectfully insist on a written or recorded settlement agreement arising out of a successful mediation--before you leave the mediation session. A later reconvening and recording may be permissible, but it's not practical to expect that to be successful.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education and now in its third edition. His updates on New Jersey contract law are based on recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

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