Orlofsky ADR Services

Fulfilling a Requirement to Mediate

It is increasingly common for contracts, and in certain cases court orders (divorce decrees, for example), to require mediation before disputants can litigate. In K.S. v. J.S., No. A-4321-17T2 (N.J. App., 2019), a divorce decree required the parties to mediate before bringing an action alleging a breach of the decree. When the defendant demanded that the plaintiff attend a mediation, the plaintiff responded by asking for a list of the issues the defendant intended to mediate, which was really a request for a statement of what breaches were alleged to have occurred. The defendant refused to provide such a list and later sought sanctions for the plaintiff’s alleged refusal to mediate.

The appellate court sided with the plaintiff, ruling that no violation of the mediation requirement had occurred because the plaintiff was entitled to know what issues the defendant wanted to mediate before attending a mediation. On the one hand, this ruling could be questioned because the order required only that a party mediate before going to court; there was no requirement to also identify what issues would be mediated. But from a practical standpoint, the mediation requirement, whether in a court order or a contract, is intended to side-step gamesmanship and have the parties try to resolve a dispute on their own, and a statement of issues such as the Plaintiff requested here would seem to be consistent with that goal, and defendant’s refusal an attempt to avoid meaningful mediation.

My takeaway: In most disputes, the parties are well aware of the nature of the potential claim when a demand for mediation is made and thus a demand for a list of issues to be mediated would be unnecessary. If, however, there is any ambiguity on the question, a request for a list of issues the other side intends to mediate would seem both a useful and reasonable request.