South-Western Legal Studies in Business

Mediator May Not Testify in Criminal Cases Except in Unusual Situations
Description New Jersey high court held that the rule of confidentiality in mediation could not be violated in a criminal assault case where the defendant wanted the mediator to reveal what the victim of the crime had said during mediation. Only if there is no other source of information may that happen.
Topic Alternate Dispute Resolution
Key Words Mediation; Mediator; Testimony; Crime; Confidentiality
C A S E   S U M M A R Y
Facts Defendant Williams got into a fight with his brother-in-law. Williams claimed the in-law attacked him with a shovel before he cut him with a machete. Williams was arrested. A mediator was appointed to try to resolve the dispute but was unsuccessful, so the matter was referred to court. The mediator told the court, when the jury was absent, that the brother-in-law told him during mediation that he had a shovel. The judge would not allow the mediator to testify in court, ruling that the mediation was confidential. Williams was convicted and appealed, contending that the testimony of the mediator was an important part of his self-defense claim. The appeals court affirmed. Williams appealed.

Affirmed. The confidentiality provision of the Uniform Mediation Act applies with equal force to a mediation participant, such as a criminal defendant, as it does to the mediator. The Act allows admission of a mediation communication in a criminal proceeding if the need for the evidence substantially outweighs the interest in protecting confidentiality and the evidence is not otherwise available. The in-law was questioned in court about the shovel, so that matter was brought up at trial.

Citation State v. Williams, 877 A.2d 1258 (Sup. Ct., N.J., 2005)

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