On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The Court determines whether a mediator appointed by a municipal court under Rule 1:40 may testify in a subsequent criminal proceeding regarding a participant's statements made during mediation.
Carl Williams and his brother-in-law, Brahima Bocoum, had a close relationship that deteriorated because of family problems. Ultimately, Bocoum and others telephoned Williams left several taunting and profanity-laced messages. That led to a face-to-face argument at the brother-in-law's house in Paterson, which quickly escalated into a physical fight. Williams claimed that his brother-in-law hit him in the shoulder with a construction shovel. Bocoum countered that Williams had retrieved a machete from the trunk of his car and cut Bocoum's wrist.
Police had apprehended Williams in his apartment, where they found an unsheathed machete. Police also found the sheath to a machete on the sidewalk in front of the brother-in-law's house. Williams was arrested.
After the arrest, Williams filed a municipal court complaint against his brother-in-law, alleging that the phone messages constituted harassment. Pursuant to Supreme Court Rule 1:40, the municipal court appointed a mediator, Pastor Josiah Hall, in an attempt to resolve the harassment dispute. The mediation was unsuccessful, and the mediator referred the matter back to municipal court.
A Passaic County grand jury later indicated Williams for aggravated assault and two charges of possession of a weapon. At trial, Williams asserted self-defense as his primary theory and proffered the mediator as a defense witness. The mediator lived near Williams' mother but denied being a friend of Williams. Questioned by the court outside of the jury's presence, the mediator indicated that the brother-in-law stated during the mediation session that he had wielded the shovel. The court, however, excluded that testimony under Rule 1:40-4(c), which prohibits a mediator from testifying in any subsequent proceeding. Defendant was convicted of third-degree aggravated assault and a weapons possession charge. He was sentenced to three years' probation, with conditions, a fine & court costs.
Williams appealed his conviction and sentence. The Appellate Division upheld the trial court's exclusion of the mediator's testimony and otherwise affirmed defendant's conviction and sentence. The Supreme Court granted Williams' petition for certification, limited solely to the question of the use of the mediator's testimony.
HELD: The Appellate Division correctly excluded the mediator's testimony concerning statements made during mediation ordered by a municipal court on charges that were related to the incident that led to defendant's indictment. Defendant did not make the requisite showings in his criminal assault matter to overcome the mediation privilege: his need for the mediator's testimony did not outweigh the interest in mediation confidentiality, and he failed to show that the evidence was not otherwise available.
1. Municipal court mediation is part of the package of procedures encompassed in Rule1:40, Complementary Dispute Resolution Programs (CDR). CDR is intended to encourage settlement, narrow issues for adjudication, or both. Pursuant to Rule 1:40-4(c), all statements made during mediation, whether by the mediator or by the parties, may not be used in any subsequent hearing or trial. The confidentiality Rule also prohibits mediators from appearing as a witness in a subsequent related matter. Defendant seeks a relaxation of the Rule. (pp. 10-12)
2. Although defendants have a constitutional right to confront witnesses against them, that right is not absolute and may bow to competing interests. (pp. 12-14)
3. The recently-enacted Uniform Mediation Act (UMA) was not in effect when the trial court excluded the mediator's testimony in this matter. Nonetheless, the Court agrees with amici curiae that the UMA principles, in general, are an appropriate analytical framework for determining whether defendant can overcome the mediator's privilege not to testify under the Rule. Under the UMA, mediation confidentiality is protected unless a defendant has shown a) there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and b) that the proponent of the evidence has shown that the evidence is not otherwise available. (pp. 14-15)
4. Although defendant attempts to challenge the inclusion of "substantially" in the UMA, the Court declines to consider the constitutionality of the statutory language in the context of this case. In any event, the Court's analysis does not rely on the inclusion of "substantially" as a modifier because the mediator's testimony does not outweigh, much less "substantiallyoutweigh," the interest in protecting mediation confidentiality. (p. 16)
5. Successful mediation, with its emphasis on conciliation, depends on confidentiality perhaps more than any other form of alternate dispute resolution. Also, the appearance of mediator impartiality is imperative. Overall, there is a growing body of evidence that mediation is particularly successful at facilitating settlements. (pp. 17-21)
6. Defendant argues that the admission of the mediator's testimony would constitute, at best, an "inconvenience to the mediator and the municipal court." Such a position trivializes the harm that will result if parties are routinely able to obtain compulsory process over mediators. For example, a victim could hardly be expected to trust that a mediator will be impartial if confidential statements made by the victim at mediation can be testified to by the mediator at a criminal trial. (pp. 21-23)
7. Because there is a substantial interest in protecting mediation confidentiality, the Court must consider defendant's need for the mediator's testimony. In this matter, the mediator's testimony does not to the level of reliability and trustworthiness that is demanded of competent evidence. The mediator's description of the mediation session conveyed an impression of bedlam, with speakers talking over each other. That, in turn, made it difficult for the mediator to attribute accurately specific statements to individual speakers. The mediator's testimony does not, in any event, corroborate defendant's version of what happened during the fight. Defendant's need for the mediator's testimony does not outweigh the interest in protecting mediation confidentiality. (pp. 23-26)
8. The Court also considers the question of whether defendant failed to demonstrate that evidence of the brother-inlaw's use of a shovel was "not otherwise available." Both parties had access to, and presented at trial, substantial evidence from other sources bearing on the defense of self-defense. The State's witnesses were thoroughly cross-examined by defense counsel, defendant's wife testified that one of the State's witnesses -- her brother Robert -- told her he lied in testifying that the brother-in-law had not wielded the shovel, and defendant himself testified in detail about his version of the fight. The Court has concluded that defendant failed to demonstrate that evidence in respect of the shovel was otherwise unavailable. (pp. 26-27)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG has filed a dissenting opinion, in which JUSTICE ALBIN joins. She disagrees with the majority's conclusions in respect of the "need" for the mediator's testimony and whether it was "otherwise available" within the meaning of the UMA. She concludes that the mediator's position as the only objective witness placed him in a entirely distinct role from the other witnesses in the case. Any concerns about the mediator's quality as a witness should have gone to the weight accorded his testimony by the jury.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE ZAZZALI's opinion. JUSTICE LONG has filed a separate dissenting opinion, in which JUSTICE ALBIN joins.
The opinion of the court was delivered by: Justice Zazzali
In this appeal, we must decide whether a mediator appointed by a court under Rule 1:40 may testify in a subsequent criminal proceeding regarding a participant's statements made during mediation.
Defendant's brother-in-law phoned defendant and left several taunting messages, leading to a face-to-face argument that quickly escalated into a physical fight. Defendant claims that his brother-in-law hit him in the shoulder with a large construction shovel. The brother-in-law counters that defendant retrieved a machete from the trunk of his car and cut the brother-in-law's wrist and foot. Police later apprehended defendant in his apartment where they found a machete.
After his arrest, defendant filed a municipal court complaint against his brother-in-law, alleging that the phone messages constituted harassment. The municipal court, in accordance with Rule 1:40, appointed a mediator in an attempt to resolve the harassment dispute. The mediation was unsuccessful, and the mediator referred the matter back to municipal court.
A grand jury later indicted defendant for aggravated assault and two charges of possession of a weapon. Defendant asserted self-defense as his primary theory and proffered the mediator as a defense witness. Questioned by the court outside of the jury's presence, the mediator indicated that the brother-in-law stated during the mediation session that he had wielded the shovel. The court, however, excluded that testimony under Rule 1:40-4(c), which prohibits a mediator from testifying in any subsequent proceeding.
Defendant was convicted of assault and a weapons charge. The Appellate Division upheld the trial court's exclusion of the mediator's testimony and affirmed defendant's conviction. For the reasons set forth below, we agree with the Appellate Division and affirm.
Defendant Carl Williams and his brother-in-law, Brahima Bocoum, were close friends. Defendant's wife, Kia, is the sister of Bocoum's wife, Renee Oliver. Difficulties between defendant and Kia's family eventually destroyed his friendship with Bocoum. The situation worsened when Bocoum became enraged after Renee told him that defendant had been gossiping about him. Together with Renee and her brother Robert, Bocoum left threatening, profanity-laced messages on defendant's voicemail.
When defendant received the messages the next morning, he drove to Bocoum's residence. He called into Bocoum's house and banged on a window, waking Bocoum, Renee, and Robert. From a first-story window, Bocoum began arguing with defendant. Bocoum eventually went outside to confront defendant on his front porch. At one point, Robert pulled Bocoum back into the house, but Bocoum reemerged and approached defendant on the sidewalk.
According to Bocoum, defendant walked to his car parked across the street, opened the trunk, and pulled out a machete. Defendant swung the machete at Bocoum, cutting his right wrist. The two wrestled briefly and fell into several full garbage cans. Renee and Robert confirm Bocoum's accusations. Defendant, however, denies that he had a machete and claims that Bocoum cut his wrist when they fell into the garbage cans. Defendant further maintains that, at one point during the argument, Bocoum picked up a large construction shovel located on the front porch and hit defendant in the shoulder. Bocoum, Renee, and Robert all testified that Bocoum did not pick up or swing a shovel at defendant.
After crashing into the garbage, defendant got into his car and sped away. Police arrived at the scene and sent Bocoum to a hospital, where he received treatment for the cut on his wrist and was released. Police found the sheath to a machete on the sidewalk in front of Bocoum's residence. Officers went to defendant's apartment, but he did not answer when they knocked and announced their presence. A maintenance person opened the apartment door, and police entered and arrested defendant. Officers discovered an unsheathed machete under a bed in the apartment.
While in police custody, an officer advised defendant that he could file a municipal court complaint against Bocoum and Renee for making harassing phone calls. After defendant filed the complaint, the municipal court, pursuant to Rule 1:40, appointed Pastor Josiah Hall to mediate the dispute. The parties were unable to resolve their dispute through mediation, and Hall referred the matter back to the municipal court.
A grand jury indicted defendant for third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. At trial, Renee Oliver, who was testifying for the State, pointed out Hall, the mediator, who was seated in the audience section of the courtroom. At a recess, defense counsel spoke with Hall and then requested permission to call him as a defense witness. With the jury excused, the court interviewed Hall, who confirmed that he was the mediator who conducted the mediation between defendant and Bocoum more than a year earlier. He said that he attended the trial because defendant had stopped by his house and told him that the trial was scheduled to start. Although Hall denied being a "friend" of defendant, he indicated that he lived near defendant's mother, and, as a pastor, he was obligated "to be friendly with everybody."
Hall described defendant and Bocoum's exchange during the mediation:
They were talking about the fight that they has. [Defendant] says that they went into a fight and they come together and he picked up the next gentleman and he threw him and they fell into a garbage bin, okay? . . . I ask [defendant] did you use a weapon and he says no.
The other fellow says that it was a fight and there was a shovel at the door and he picked up the shovel and -- but ...