A review of the settlements case Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, LLC that went through the New Jersey Supreme Court in 2013.
Opinion by Justice Albin.
Issue 1: Must a settlement agreement reached at mediation be reduced to writing and signed at the time of mediation?
Holding 1: Yes. A settlement that is reached at mediation but not reduced to a signed writing will not be enforceable on a going-forward basis. An audio- or video-recorded agreement would also satisfy this requirement. If an agreement is reached at mediation, it must be reduced to writing and signed before the mediation comes to a close. If the settlement is complex, the mediation should be continued for a brief but reasonable time in order to sign an agreement. Under the facts and circumstances of this case, the oral settlement agreement is enforceable.
Issue 2: Did the plaintiff waive the privilege that protects the parties from disclosing any communication made during the course of mediation?
Holding 2: Yes. A party that expressly waives the privilege and discloses privileged communications that occurred during the mediation cannot later invoke the privilege.
David Wildstein practices family law with the New Jersey law firm of Wilentz, Goldman & Spitzer.