On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3822-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
Before Judges Axelrad and Haas.
Plaintiff Vincent Rutigliano appeals from an order enforcing a settlement reached at the conclusion of a mediation session. He argues the judge erred by permitting defendant James Rutigliano to disclose the terms of the settlement for the court's review. Guided by our recent decision in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 421 N.J. Super. 445 (App. Div. 2011), certif. granted, 209 N.J. 97 (2012), we hold that the trial judge properly enforced the settlement and considered defendant's testimony because the parties waived the confidentiality provisions of the Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13 (Act), specifically N.J.S.A. 2A:23C-4, and Rule 1:40-4(d). We, therefore, affirm.
Plaintiff and defendant are brothers and beneficiaries of their mother's will. After her death, plaintiff filed a complaint against defendant in which he asserted that defendant had fraudulently induced their mother to change her will to leave property she owned to defendant's two children. Defendant denied the allegations.
The court ordered the parties to attend non-binding mediation pursuant to Rule 1:40-4(a). A six-and-a-half hour mediation session was held on July 21, 2011 at plaintiff's attorney's office. Both parties attended, together with their attorneys and the mediator. After the mediation session was completed, the mediator advised the court that a settlement had been reached.*fn1 In accordance with that notification, the court's docket was marked to indicate that the matter had been settled.*fn2
On or about July 28, 2011, however, plaintiff's attorney sent defendant's attorney a letter stating that plaintiff "does not believe that there was a final or binding meeting of the minds at mediation of this matter." Plaintiff's attorney then offered to settle the matter on new and different terms. Defendant's attorney responded by letter dated July 29, 2011. Defense counsel asserted that, at the conclusion of the mediation, the mediator brought the parties together "in the large conference room, at which time all of the terms and conditions were fully discussed. After full disclosure, the parties agreed on the terms . . . before the mediator, and the parties shook hands and departed." The letter sets forth the terms of the settlement discussed by the parties on July 21, 2011.
Defendant filed a motion to enforce the settlement. Plaintiff opposed the motion, arguing that the parties had never entered into a written settlement agreement and neither party should be able to present testimony concerning what happened during the mediation session.
On December 12, 2011, Judge Craig Wellerson held a plenary hearing to consider defendant's motion.*fn3 The judge determined not to consider testimony or certifications from either party's attorney or from the mediator. However, he gave each party the opportunity, if they wished, to give limited testimony concerning what happened when the settlement was discussed by the parties.
The judge reasoned that such testimony did not violate the confidentiality requirements of N.J.S.A. 2A:23C-4 and Rule 1:40-4(d) because those provisions only apply to matters that are discussed during the actual mediation, where the parties advise the mediator of their respective positions and supporting rationales. Here, on the other hand, the parties had completed the mediation process and the mediator brought them together in a conference room to set forth the terms of the settlement. Thus, the judge ruled that neither party would be permitted to testify as to what happened while the case was actually being mediated. However, the parties could testify concerning what took place when the terms of the settlement were discussed and finalized at the conclusion of the mediation.
Defendant agreed to testify at the hearing. Plaintiff, however, did not. Plaintiff's attorney advised the judge that plaintiff would not testify because, if he did so, this might be construed as a waiver of his right to maintain the confidentiality of what occurred during the mediation.
Defendant testified that "[a]t the conclusion of the mediation process[, the mediator] called all of the parties together in a conference room and went over the terms and conditions of the settlement agreement." Defendant testified as ...