By: Brian Block*
November 17, 2013
On August 15, 2013, the Supreme Court of New Jersey released its opinion in Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, LLC, clarifying that, pursuant to Rule 1:40-4(i), all settlement agreements reached as a result of mediation in New Jersey state courts must be reduced to a signed writing, or ascribed to in an audio or video recording. In reaching this result, the Court interpreted the relevant N.J. Court Rules, the N.J. Uniform Mediation Act (“NJ UMA”), and the N.J. Rules of Evidence. Further, the Court cited as its policy considerations the encouragement of open and frank settlement negotiations, and avoidance of collateral litigation concerning whether a settlement was actually reached. The Court unequivocally stated that, henceforth, a settlement agreement that is not memorialized through one of the above methods will not be enforceable.
II. The Case
The Willingboro Mall case began with the sale of the Willingboro Mall by the plaintiff-appellant Willingboro Mall, Ltd. (“Willingboro”) to the defendant-appellee 240/242 Franklin Ave., LLC (“Franklin”). In order to secure part of Franklin’s payment obligation, the parties executed a promissory note and mortgage. Willingboro filed a foreclosure action after, it claims, Franklin failed to tender a payment. When Franklin denied that it had defaulted, the Superior Court ordered the parties into mediation. During the mediation, Franklin made an offer “in exchange for settlement of all claims and for a discharge of the mortgage,” and Willingboro’s manager orally accepted. Notably, the settlement terms were not reduced to a signed writing prior to termination of the mediation session.
Franklin sent a letter to the Superior Court three days later confirming a settlement had been reached and setting forth the terms of the settlement. Upon receiving a letter from Franklin regarding execution of the settlement, Willingboro rejected the settlement terms, whereupon Franklin filed a motion to enforce with attached certifications from its attorney and the mediator that revealed communications during the session. In response, rather than filing a motion to dismiss or a motion to strike the revealing certifications, Willingboro requested an evidentiary hearing and discovery. The Superior Court ordered a hearing to determine the existence of an enforceable settlement. As Justice Barry Albin put it, “[i]nstead of litigating the dispute that was sent to mediation, the mediation became the dispute.”
Prior to the hearing, witnesses were deposed, including the mediator, at which time both parties agreed to waive the mediation confidentiality privilege. The mediator only testified after being compelled to by the judge overseeing the hearing, who received confirmation from both parties that the privilege was being waived.
On the first day of a hearing on the existence of a settlement, Willingboro cross-examined the mediator, and after the mediator hesitated to reveal further mediation communications, Willingboro explicitly agreed that confidentiality was waived. On the second day of the hearing, Willingboro did a “180” and moved to expunge all of the confidential mediation communication previously disclosed, citing the NJ UMA and Rule 1:40-4. The judge found that the mediation privilege was waived by Willingboro. Upon conclusion of the hearing, the judge held that an enforceable settlement had indeed been reached at mediation, and thus granted Franklin’s motion to enforce.
The Appellate Division affirmed based on Willingboro’s waiver of the mediation communication privilege and that the facts adduced at the hearing were sufficient to prove the settlement agreement, but also concluded that Rule 1:40-4(i) did not require the settlement to be reduced to a signed writing to before the mediation session was finished. The Supreme Court of New Jersey granted certification on two issues: 1) “whether Rule 1:40-4(i) requires a settlement agreement reached at mediation to be reduced to writing and signed at the time of mediation, and [2)] whether Willingboro waived the mediation-communication privilege.”
III. Mediation Privilege and Relevant Exceptions
Subsequent to setting forth the standard of review and underscoring the general public policy favoring settlements, the Court outlined the “mediation communication privilege.” First, the Court recognized that Rule 1:40-4(c) privileges all “mediation communication[s]” “except as provided by the New Jersey Uniform Mediation Act.” Looking outside the Court Rules, the survey next focused on the identical broad mediation communication privilege, conferred by both NJ UMA and New Jersey Rule of Evidence (N.J.R.E.) 519(a),  and noted that the privilege is waivable. Next, the Court moved into its examination of the two exceptions to the privilege relevant to the case at hand.
Up first was the “signed-writing exception.” Because Rule 1:40-4(i) states that a mediation settlement agreement “shall be reduced to writing and a copy thereof furnished to each party,” it is not clear whether such a writing must be signed by the parties. The Court noted, however, that the Civil Practice Division’s publication, Mediator’s Tool Box, already strongly encourages the mediator to have the parties sign the settlement agreement. The lynchpin of the Court’s understanding of the exception was the identical language of the NJ UMA subsection 2A:23C-6(a)(1) and N.J.R.E. 519(c)(a), which both provide that “‘an agreement evidenced by a record signed by all parties to the agreement’ is an exception to the mediation-communication privilege.” Hence, under both provisions, a signed writing is admissible to show a settlement was reached—in contrast to the oral agreement reached between Franklin and Willingboro.
Importantly, the Court acknowledged that “an agreement evidenced by a record signed by all parties” includes not only a signed document, but also agreements recorded by tape and ascribed to on the same. The wide scope of this definition comes from the Uniform Mediation Act Drafters’ Comments appended to subsection 6(a)(1), which was adopted by New Jersey in 2004 as the NJ UMA. Having established the first exception to the privilege, the Court moved on to the second relevant exception.
The second exception to the mediation communication privilege is “waiver.” In quoting the NJ UMA and N.J.R.E. 519(b) verbatim, the Court explained that the privilege can be waived “orally during a proceeding if it is expressly waived by all parties to the mediation” and if the mediator expressly waives the privilege. The Court then pivoted to an application of these principles to the facts as set forth above.
IV. Willingboro Waived
Off the bat, the Court deemed the “signed-writing exception” inapplicable to the case because Willingboro never relied on the absence of a signed writing as a bar to enforcement of the oral agreement. Instead, Willingboro litigated the enforceability of an oral agreement by “waiving the mediation communication privilege.” As to the “waiver exception,” the Court began by acknowledging that the mediator and Franklin performed the original breaches of the mediation communication privilege; the certifications attached to the motion to enforce contained substantive terms pertaining to the settlement and were thus privileged “mediation communications.” However, instead of filing a motion to strike or suppress, Willingboro responded to the motion by litigating the existence of the oral agreement. This strategy would prove its undoing.
The tactics Willingboro used during litigation included disclosing mediation communications via submission of a substantive certification, as well as deposing the mediator. Willingboro expressly waived the privilege twice at the mediator’s deposition. Once more, Willingboro’s attorney expressly waived the privilege on the first day of the hearing. The Court had no trouble finding that Willingboro expressly waived the mediation communication privilege under both the NJ UMA and New Jersey Rule of Evidence 519. Since the Appellate Division’s finding that the evidence supported the trial court’s determination that an agreement was reached was not appealed, the Court’s inquiry ceased and the settlement agreement between Willingboro and Franklin affirmed.
V. New Rules of the Road for Mediation Settlements
Although the case itself turned on the “waiver exception,” the key takeaway from Willingboro Mall is the Court’s interpretation of Rule 1:40-4(i) through the NJ UMA and New Jersey Rules of Evidence provisions concerning the “mediation communication privilege.” In order for a settlement agreement to be enforceable, 1) prior to the end of the mediation session, 2) the settlement agreement must be written down, and 3) signed by all parties to the dispute. In situations where the terms of the agreement are complex, the session may have to be extended for a “brief but reasonable period of time” to allow for proper drafting and signing. Additionally, audio and video-recorded settlement agreements, ascribed to by all parties to the dispute, are approved substitutes to the signed writing.
With the Court’s clarification of Rule 1:40-4(i), probably the most important task left to complete is to ensure that all of the mediators are up to date on the law. In this same regard, the Civil Practice Division should update its Mediator’s Tool Box publication with stronger language directing mediators to mandate a signed writing or equivalent thereof when parties reach a settlement agreement. This will work to protect the less sophisticated parties involved in mediation.
* Brian Block is a May 2014 J.D. Candidate at Rutgers School of Law - Camden and the Managing Blog Editor for the Rutgers Journal of Law & Public Policy.
 N.J. CT. R. 1:40-4(i).
 Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 71 A.3d 888, 897, 900-01 (N.J. 2013).
 N.J. CT. R. 1:40-1 to -12 (N.J. Court Rules concerning “Complementary Dispute Resolution Programs” (CDR) such as mediation).
 N.J. STAT. ANN. §§ 2A:23C-1 to -13 (West, Westlaw through L. 2013, c. 169 and J.R. No. 13).
 N.J. R. EVID. 519.
 Willingboro Mall, 71 A.3d at 901.
 Id. at 900-901.
 Id. at 891.
 Willingboro Mall, 71 A.3d at 891.
 Id. at 891–92.
 Id. at 892.
 Willingboro Mall, 71 A.3d at 890.
 Id. at 892.
 Id. at 892–93.
 Id. at 893.
 Willingboro Mall, at 893–94.
 Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 24 A.3d 802, 807–08 (N.J. Super. Ct. App. Div. 2011) (“We reject the gloss advanced by plaintiff that would require contemporaneous reduction of the terms to writing and obtaining signatures on the document at the mediation.”).
 Willingboro Mall, 71 A.3d at 894.
 Id. at 895.
 Id. at 895–96.
 Id. at 896 (quoting N.J. CT. R. 1:40-4(c)).
 Id. (discussing N.J. R. EVID. 519(a) and § 2A:23C-4 (Westlaw)).
 Willingboro Mall, 71 A.3d at 897.
 N.J. CT. R. 1:40-4(i).
 Willingboro Mall, 71 A.3d at 897 (quoting CIV. PRACTICE DIV., MEDIATOR’S TOOL BOX: A CASE MANAGEMENT GUIDE FOR PRESUMPTIVE ROSTER MEDIATORS 11 (2011)) [hereinafter MEDIATOR’S TOOL BOX], available at http://www.judiciary.state.nj.us/civil/mediators_toolbox.pdf).
 Id. It appears that the Court may have also been willing to accept “an e-mail exchange between the parties in which they agree to particular provisions” as an enforceable agreement. See id.
 See id. (quoting Nat’l Conference of Comm’rs on Unif. State Laws, UNIF. MEDIATION ACT § 6(a)(1), cmt. 2 (2003) [hereinafter UMA § 6]).
 Uniform Mediation Act, 2004 N.J. Sess. Law Serv. ch. 157 (West), available at http://www.njleg.state.nj.us/2004/Bills/PL04/157_.PDF; see also § 2A:23C-1 editors’ notes (Westlaw) (Senate Judiciary Committee statement on S.679 explaining New Jersey’s adoption of the UMA).
 Willingboro Mall, 71 A.3d at 897.
 Id. at 898.
 Id. (citing § 2A:23C-2 (Westlaw)).
 Id. at 899.
 Willingboro Mall, 71 A.3d at 899.
 Id. at 900. Before the deposition began, both parties agreed to “waive any issues of confidentiality with regard to the mediation process,” and then Willingboro consented to the waiver once again before the judge overseeing the case directed the mediator to testify. Id.
 Id. at 892–93, 900.
 Id. at 900 (citing § 2A:23C-5(a) (Westlaw) and N.J. R. EVID. 519(b)).
 See id. at 894 (listing issues on which Willingboro petitioned for certification).
 Id. at 900.
 Willingboro Mall, 71 A.3d at 900. A mediation session under the CDR lasts for two hours. N.J. CT. R. 1:40-6(a).
 Willingboro Mall, 71 A.3d at 900; see also UMA § 6, supra note 38, cmt. 2.
 See MEDIATOR'S TOOL BOX, supra note 34, at 11.