By Hanan M. Isaacs, M.A., J.D., A.P.M.

Excerpts from the New Jersey Association of Professional Mediators Standards of Conduct for Mediators:

STANDARD I. SELF-DETERMINATION

A. Mediator shall conduct a mediation based on the principle of Party self-determination. Self-determination is the act of coming to a voluntary decision in which each Party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

B. Although Party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these standards, and the recognition that in some cases . . . neither the Parties nor the mediator can make certain choices concerning the process or range of outcomes.

C. A mediator cannot personally ensure that each Party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the Parties aware of the importance of consulting other professionals to help them make informed choices.

STANDARD II. IMPARTIALITY

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

B. A mediator shall conduct a mediation in an impartial manner and should try to avoid conduct that gives the appearance of partiality.

1. A mediator shall guard against partiality or prejudice based on a participant’s personal characteristics, background, values and belief, or performance at a mediation.

2. A mediator should neither give nor accept a gift, favor, loan or other item of value that would be likely to raise a question as to the mediator’s actual or perceived impartiality.

C. If at any time, a mediator realizes that s/he is unable to conduct a mediation in an impartial manner, and that no reasonable effort is likely to ameliorate the problem, then the mediator shall withdraw.

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Analysis:

Mediators, like all human beings, have a point of view and can never be truly neutral.  However, we are required to do our best to be impartial, including withholding our biases and conclusions from the parties.  Becoming an advocate for one party’s position means the “neutral” must become adversarial to the other party’s position, even if we say it nicely. 

NJAPM Standards of Conduct want parties to make “informed choices”, a value served by the requirement that we “make the parties aware of the importance of consulting other professionals.”

In divorce mediation, that notification requirement means mediators should recommend party consultation with licensed New Jersey family law/matrimonial attorneys. 

The divorce mediator helps parties reach tentative agreements, subject to final review by outside licensed NJ legal counsel.  Outside counsel, including neutral counsel per the Rules of Court, RPC 2.4 (see Rule contents at the end of this article), can and should advise parties about New Jersey law, and should help each party reach a state of “informed consent”. 

`           In my opinion, NJ attorney-licensed and trained mediators are permitted to explain the relevant NJ laws and rules as they may pertain to the parties’ negotiations, including nuances about the law, as long as they do not direct parties to their conclusions, even subtly; take sides; advocate for one party and against the other; or otherwise interfere with informed consent.  Other-trained mediators (psychologists, social workers, CPA’s, financial planners, and others), should NOT explain the relevant NJ laws and rules as they may pertain to the parties’ negotiations, including nuances of the law, especially when parties have indicated they wish to avoid outside attorney review.   They also should refrain from directing parties; taking sides; or interfering with informed consent.

I am not talking about educating people about the law.  “New Jersey is an equitable distribution state” is a statement of fact about the law.  All mediators can say that, without risk of harm. However, explaining the effect of commingled assets on the parties’ equitable distribution plan is not a statement of fact, nor is an explanation of how the law of child relocation applies to the parties.  Both of these examples require an analysis of the law, which is and should remain the domain of licensed attorneys.   Yes, the distinction I have drawn could produce close questions, some going one way and some the other.  But in clearly drawn situations, failure to stay in one’s lane could yield disaster for the parties and the mediator.  We only learn what the parties actually understood, or thought they did, after the fact, when it may be too late to mitigate the harm.  Does the other-trained mediator have insurance coverage? What if the carrier concludes that the mediator engaged in unauthorized legal practice, based on advice given that should not have been?  No insurance means self-insurance and no money for a defense lawyer.  Damages claims in these cases can be very high.

As an Association of Professional Mediators, we should strive to create a process that is informative, fair, and reasonably safe for the parties – and the mediator.

Looking together at examples of boilerplate language to see what other-trained mediators should and should not explain to parties can certainly illustrate it the point.

“Explaining” the law and “advising” about the law at some point becomes indistinguishable, especially as it relates to the parties’ inevitable questions: “how does this apply to me?” “and me?” In that moment, all mediators should take care, but the other-trained mediator should take great care.

When it comes to boilerplate language, where did the other-trained mediator get the language from?  Who drafted it?  What does it mean? Are there ambiguities?  Should the language change from case to case? Who is favored or disfavored in the selected language?

Boilerplate language often seems “boring” and lacking in meaning, until somebody seeks to challenge or enforce something.

Here is a common list of boilerplate provisions I include in an MSA and could include a mediated MSA.  A close variation would be used for an MOU.

I do not include every provision below in every Agreement.  There are variations, based on circumstances and what is relevant and right.  I add other provisions as needed and relevant.

Some examples of “not automatic” or “disfavoring” provisions below could include:

*After-acquired property

*Governing law and rules of interpretation

*Modification for substantial changed circumstances

*Mutual release of claims

*Warranty of full disclosure

We can and should look at these examples, analyze them for “legal side only” versus “education and it’s o.k.”, and think of others as well.

            I wish you happy reading and consideration.  Let me know what you think.

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General Provisions.

                                  a.) Independent Legal Advice and Costs.

                                  The parties agree that each has been fully informed  of the right to the assistance of legal counsel in the preparation  of this Agreement, that each has received the advice of separate counsel prior to signing this Agreement, that each is satisfied  with the services of counsel, and that each believes this Agreement to be fair.  Specifically, * was represented by *, Esq., of *, New Jersey, and * was represented by Hanan M. Isaacs, Esq., of Kingston, New Jersey.

                                  b.) After‑Acquired Property.

                                  The parties agree that neither of them retains any right or interest in any property acquired by the other after the

date on which this Agreement is executed by both parties, whether such property right or interest arises in the State of New Jersey or in any other jurisdiction.

                                  c.) Governing Law and Rules of Interpretation.

                                  The parties agree that this Agreement will be governed and interpreted according to the laws of the State of New Jersey as they now exist or may exist in the future, irrespective of the jurisdiction in which this Agreement is executed or in which enforcement is sought by either or both of the parties.  Furthermore, the parties agree that this Agreement contains the entire understanding between them, and that any modification of a term of this Agreement shall be binding only if made in a writing signed by both parties, and duly notarized as to each signature.

                                  If any provision of this Agreement is held void, voidable, or unenforceable, then, and nevertheless, the parties agree that all remaining provisions of the Agreement will remain in full force and effect.

                                  Finally, the parties agree that this Agreement may be offered by either or both of them as evidence in any appropriate proceeding, whether matrimonial or otherwise, and that the enforceability of this Agreement will survive the entry of any decree or judgment of divorce that in the future may be entered in an action between them.

                                  d.) Agreement to Cooperate and Negotiate in Future.

                                  The parties agree that each of them will be free from interference or control by the other, directly or indirectly, as fully as if he or she were unmarried.  The parties agree that each of them will, from time to time and at the request of the other, execute and deliver to the other party all documents that reasonably may be required to give full effect to the terms and intentions of this Agreement.  *The parties further agree that the terms of this Agreement expressly are*/are not intended to prevent either of them from applying in the future to a court of competent jurisdiction for an Order modifying the terms of this Agreement, based on alleged substantial changes in the financial circumstances of either or both of them.

                                  The parties agree to attempt to negotiate with one another concerning any future disputes that may arise regarding the interpretation or enforcement of the terms of this Agreement, before resorting to the court system.  Specifically, the parties agree that if they are unable to resolve a dispute, they shall jointly select, retain, and pay for, the services of a qualified Mediator, who shall attempt, along with the parties, to resolve any dispute(s) that may arise between them.

                                  If a dispute arising between the parties goes to Court, and in the further event that a party is found in breach of the Agreement, then the breaching party shall pay to or on behalf of the other party a reasonable counsel fee and costs, the amount to be set in the Court’s discretion.

                                  e.) Mutual Release of Claims, Rights and Demands.

                                  The parties affirm that this Agreement represents a full and complete settlement of all claims for child custody and time-sharing, alimony, child support, and equitable division and distribution of all marital assets and liabilities.  Therefore, each of them now discharges the other, and his or her respective heirs, executors, administrators, and assigns, from all claims, rights or demands that each of them had or now has against the other, except for any cause of action for divorce, or for the enforcement of the terms of this Agreement. The parties further agree that the terms of this Agreement are intended to bind their respective heirs, executors, administrators, and assigns, completely and without limitation.  This paragraph shall be deemed to come within and satisfy New Jersey’s entire controversy doctrine.

                                  f.) Noncollusion Between the Parties.

                                  Notwithstanding the foregoing terms of this Agreement, the parties state that neither of them has entered into an agreement with the other with respect to obtaining a divorce or restraining the other from contesting any future divorce proceedings.

                                  g.) Warranty of Full Disclosure.

                                  The parties warrant one to the other that each of them has fully informed the other concerning his or her property, debts, budget, and income from all sources, and that each party is entitled to rely upon the accuracy and completeness of said disclosure.  The parties acknowledge that each of them has had a fair and sufficient opportunity to gain discovery regarding the other party’s property, debts, budget, and income from all sources.  The parties further acknowledge to their respective legal counsel, and to one another, that both parties waived the right to obtain formal discovery from the other, including the issuance of interrogatories, completed Case Information Statements, depositions, or the like, and that such waivers were against the express advice of legal counsel for both of the parties.  Notwithstanding such advice, the parties, for reasons best known to them, chose to proceed without formal discovery.

                                  h.) Obtaining of Tax Information and Advice. The parties expressly acknowledge that legal counsel for each party directed his or her client to obtain independent and knowledgeable tax advice prior to entering into this Agreement, since neither counsel possessed the requisite knowledge to offer such advice.  Legal counsel shall not be held responsible for a party’s tax liability resulting from that party’s failure to obtain competent tax information and advice prior to entering into this Agreement.

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RPC 2.4 Lawyer Serving as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform the parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Note: Adopted November 17, 2003 to be effective January 1, 2004.