NJ: Med. Confidentiality Upheld in Criminal Case

Dispute Resolution Journal, Aug-Oct 2005

On July 28, 2005, the New Jersey Supreme Court ruled in State of New Jersey v. Williams (No. A-61-04) that a criminal defendant could not require a mediator to testify to support his claim of self-defense. In reaching this result, the court applied the principle in the New Jersey Uniform Mediation Act that mediation communications should remain confidential unless the party seeking the evidence can show that the mediation privilege is "substantially outweighed" by the need for the evidence and that the evidence is not "otherwise available."

Although the UMA was not in effect until after the trial court excluded the mediator's testimony, the New Jersey Supreme Court agreed that the UMA provided an "appropriate analytical framework" to decide this case. The court said that there are substantial interests in protecting the confidentiality of mediation communications, and that "[s]uccessful mediation, with its emphasis on conciliation, depends on confidentiality perhaps more than any other form of ADR."

The court did not rule on the constitutionality of the UMA standard for two reasons: (1) because the issue was not raised until the appeal (and could not be raised before then since the UMA did not become effective until after the trial); and (2) even applying the defendant's own standards, the mediator's testimony did not outweigh the need for the testimony.

The court's interpretation of the UMA could prove influential in jurisdictions that have adopted the Act.