ALICE OBERMAN v. LAWRENCE OBERMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALICE OBERMAN,

Plaintiff-Respondent,

v.

LAWRENCE OBERMAN,

Defendant-Appellant/

Cross-Respondent.

____________________________________________

IN THE MATTER OF PHYLLIS S. KLEIN, ESQ.,

Respondent/Cross-Appellant.

______________________________________________

September 10, 2015

Argued September 23, 2014 Decided

Before Judges Messano, Hayden and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1254-10.

Thomas J. Snyder argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito, & Frost, attorneys; Mr. Snyder and Katherine Fredland, of counsel and on the brief).

Karin Haber argued the cause for respondent (Haber Silver & Simpson, attorneys; Ms. Haber, of counsel; Amy L. Miller, on the brief).

Phyllis S. Klein, respondent/cross-appellant, argued the cause pro se (Donahue, Hagan, Klein & Weisberg, LLC, attorneys; Francis W. Donahue and Ms. Klein, of counsel and on the brief).

PER CURIAM

Defendant, Lawrence Oberman, appeals from portions of the August 31, 2012 Family Part order, which compelled him to pay one- half of the mediator's fee; "dismissed" his unfiled allegations concerning the mediator and others for damages due to negligence, breach of contract, fraud and statutory breach arising out of a mediation, denied his request to preserve said allegations for future litigation, and awarded plaintiff, Alice Oberman, additional counsel fees. Additionally, the mediator appeals from the trial court's denial of her request for counsel fees for the work she incurred in opposing defendant's motion and seeking payment of the mediation fees. After carefully reviewing the record and applicable legal principles, we affirm in part, reverse in part, and remand this matter back to the trial court.

I.

We discern the following facts from the record. Defendant and plaintiff were married in 1991 and plaintiff filed for divorce on February 8, 2010. On May 5, 2011, the trial court ordered the parties to participate in post-ESP mediation1 pursuant to Rule 1:40-5(b). Counsel for both parties agreed on the mediator. After four mediation sessions, the parties were unable to reach a settlement.

The trial began in November 2011 and continued on non-consecutive days until February 2012. On March 26, 2012, the trial court entered a judgment of divorce. In its decision, the trial court resolved issues related to the distribution of marital assets and alimony, but deferred a decision on the issues of counsel fees, and allocation of outstanding expert and mediation fees until the parties had submitted certifications.2

Subsequently, plaintiff submitted a certification requesting that defendant pay a significant portion of the counsel and mediation fees. In support, plaintiff asserted that defendant was in a better position financially to pay these fees and accused defendant of engaging in bad faith conduct during both the mediation and the trial.

In response, defendant submitted his certification objecting to paying any mediation or counsel fees. With regard to the mediation fees, defendant asserted that "the quality of service provided by the mediator was a hindrance to the process" as mediation sessions were routinely cancelled and the mediator was non-responsive. Additionally, defendant alleged that the mediator had a conflict of interest in this case as a partner at the mediator's law firm was in a long-term "live-in" relationship with a partner at plaintiff's counsel's firm. Defendant claimed that neither the mediator nor plaintiff's counsel informed him of this conflict. Defendant maintained that the conflict tainted the mediation process and called into question the mediator's impartiality.

In response to the trial court's directive, defendant filed a motion on June 12, 2012, setting forth his belief that he had numerous claims against a variety of non-parties. He contended that he should pay nothing on the mediator's bill and plaintiff should pay the entire amount. He asked in the alternative or in addition that all claims defendant has against the mediator, her law firm, and plaintiff's law firm for "damages, claims for credits, claims for contributions and offsets in connection with the economic mediation be preserved" and that defendant be permitted to proceed with a separate legal action.3 As another possibility, he asked that the allocation of the mediator's fees be held in abeyance pending the outcome of separate litigation against the mediator and other non-parties. Alternatively, defendant asked for extensive discovery on the alleged statutory violation under the Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13 as well as on any "such claims that exist in law or in equity," with depositions of numerous persons, including unknown third parties, and a plenary hearing before the trial judge with the fee allocation being held in abeyance until the completion of the discovery and hearing.

Both plaintiff and the mediator filed cross motions. Plaintiff opposed defendant's request for any of his asserted claims to be preserved for future ligation, and denied that defendant had any cause of action against the third-parties as there was no conflict of interest. In her cross motion, the mediator argued that although she was not obligated to disclose the relationship between the partners, she disclosed this information to defendant's former counsel, most likely at the first mediation session. The mediator asserted that it was likely that defendant was present at the time this disclosure was made.

In addition, the mediator included a certification from defendant's former attorney attesting that defendant was probably present when the relationship between the partner at the mediator's firm and the partner at plaintiff's counsel's firm was discussed. And, the mediator provided a certification from a partner in her law firm explaining that the mediator would not financially benefit from the relationship. Moreover, the mediator asserted that her efforts during the mediation sessions helped the parties come to two preliminary agreements. Finally, the mediator sought payment of her mediation fees as well as counsel fees for her legal work in collecting the outstanding mediation fees.

After hearing argument, the trial court issued an order and a written decision on August 31, 2012, denying defendant's motion in its entirety. In considering defendant's assertion that he had tort, contractual, and statutory claims against the mediator and others, the trial court viewed the plaintiff's and mediator's cross motions as motions to dismiss these claims under Rule 4:6-2(e), for failure to set forth a claim upon which relief could be granted. However, the trial court determined that "since matters beyond the pleadings are presented, the court will review the motion to determine if [defendant] has set forth a cause of action granting him all favorable inferences. R. 4:46-2." See R. 4:6-2(e).

Applying that standard, the trial court presumed that the mediator had not disclosed the relationship between the two partners. Even so, the trial court found that defendant's claims must fail as he had not stated a cause of action under N.J.S.A. 2A:23C-9. The trial court noted that defendant had made no allegations that the mediator had a relationship with any of the parties to the mediation or that she had a personal interest in the outcome of the mediation. Additionally, the trial court rejected defendant's argument "that if the mediation failed, [plaintiff's partner] would benefit, thus benefitting [the mediator's partner,] and then in turn somehow benefitting [the mediator]." The trial court found this argument to be one that no "reasonable individual would consider likely to affect the impartiality of [the mediator] . . . ." The court concluded that "defendant has not made out a cause of action cognizable under the law as to the alleged breach of the mediation statute."

With regard to the parties' counsel fees, after reviewing the factors set forth under Rule 4:42-9 and Rule 5:3-5(c), the court determined that defendant must pay $15,000 for plaintiff's legal fees in addition to the amount he had already paid. Concerning the mediation fees, the trial court ordered plaintiff and defendant to equally split the $10,028.78 mediation fees4 and pay it within thirty days. However, the trial court rejected the mediator's request for counsel fees for her work in trying to collect the mediation fees. The court reasoned that Segal v. Lynch, 211 N.J. 230, 261 (2012), prohibited "attorneys who represent themselves" from collecting counsel fees based on that self-representation.

II.

On appeal, defendant raises several contentions for our consideration. In essence, he argues that the trial court erred in dismissing claims against third parties that were not filed in the matrimonial action and in denying his request to preserve his non-filed claims, in ordering him to pay half the mediator's fees, and in awarding any counsel fees to plaintiff, especially without a plenary hearing.

We begin with considering our standard of review. Factual findings by a family court are accorded deference "because of its 'special jurisdiction and expertise' in family matters.'" Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). In contrast, a trial judge's conclusions on issues of law is not entitled to any deference. Manalpan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).

"Mediation is governed by our court rules, R. 1:40[-1] to 1:40-12, the Mediation Act, N.J.S.A. 2A:23C-1 to -13 and our rules of evidence, N.J.R.E. 519." Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, LLC, 215 N.J. 242, 254 (2013). Our State has recognized the benefits of all forms of alternative dispute resolution to encourage parties to compromise and settle litigation. State v. Williams, 184 N.J. 432, 446 (2005). There can be no doubt that "[o]ur court system encourages mediation as an important means of settling disputes." Willingboro Mall, Ltd., supra, 215 N.J. at 254 (citing Williams, supra, 184 N.J. at 446). A major reason for this encouragement is the "growing body of evidence that mediation is particularly successful at facilitating settlement." Williams, supra, 184 N.J. at 448. As the Court pointed out, "mediation's great strength is that disputants who settle in that forum are generally satisfied." Id. at 449. Nevertheless, as with so many human interactions, some people may be dissatisfied with the process and have the right to resort to civil litigation to address perceived wrongs. See generally James R. Coben & Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation about Mediation, 11 Harv. Negotiation L. Rev. 43 (2006).

Defendant contends that the trial court erred in dismissing his claims against the mediator and other third parties that he had not yet filed and essentially requiring him to litigate his claims against non parties in the context of his matrimonial case. In our view, it was defendant's insistence that he was forced to inform the court about the claims he had against third parties due to the entire controversy doctrine and res judicata that led to the court's addressing the issue. Defendant's position showed a fundamental misunderstanding of those concepts. Inherent in defendant's argument in his motion was his apparent perception that the trial court's decision on the allocation of mediation fees would preclude him from later raising these claims against the mediator, her law firm, and plaintiff's counsel's law firm and other third parties. A review of the case law reveals that neither the entire controversy doctrine nor res judicata bar these unfiled claims against non-parties.

The entire controversy doctrine addresses "'the need for complete and final disposition through the avoidance of piecemeal decisions.'" Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 443 (2011) (quoting Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989)). The doctrine represents this State's "long-held preference that related claims and matters arising among related parties be adjudicated together rather than in separate, successive, fragmented, or piecemeal litigation." Ibid.

The doctrine, which applies to family actions, originally only required the joinder of related claims. Sweeney v. Sweeney, 405 N.J. Super. 586, 592-93 (App. Div.), certif. denied, 199 N.J. 519 (2009). The doctrine was later expanded to require joinder of parties. Id. at 593. However, in 1998, the Court amended the doctrine, as set forth in Rule 4:30A, to eliminate the mandatory party joinder requirement. Kent Motors, supra, 207 N.J. at 444. Thus, "[e]xcept in special situations involving both inexcusable conduct and substantial prejudice to the non-party resulting from omission from the first suit, successive actions against a person not a party to the first action are not precluded." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:30A (2015).

As a result, the doctrine "requires the joinder of 'virtually all causes, claims, and defenses relating to a controversy between the parties engaged in litigation.'" Sweeney, supra, 405 N.J. Super. at 592 (quoting Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 314-15 (App. Div. 2000) (emphasis added). To determine whether a successive claim between parties is barred by the doctrine, courts must analyze whether the claim "'arise[s] from related facts or the same transaction or series of transactions.'" Ibid. (quoting DiTrolio v. Antiles, 142 N.J. 253, 267 (1995)) (alteration in original). It follows that claims defendant might have against non-parties concerning damages from torts or contractual violations are not subject to the entire controversy doctrine.

Similarly, "[t]he term 'res judicata' refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). For res judicata to apply

(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one.

[Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 412 (1991).]

In the instant proceeding, the only issue remaining in the matrimonial litigation was allocation between plaintiff and defendant of responsibility for payment of the mediator's fees. Defendant did not raise the issue of the tort, contract or statutory claims against plaintiff as he certified that, as far as he knew, plaintiff did not know about the alleged conflict. Accordingly, res judicata would not prevent the unfiled claims from being raised in a subsequent proceeding against third parties as those claims and parties were not part of the matrimonial case between plaintiff and defendant.

Plainly, defendant was mistaken in asserting that he needed the court's permission to preserve the claims against non-parties based on the entire controversy doctrine or res judicata. Significantly, at no time did he seek to amend the complaint to add the non-parties. Rather, he requested that these claims be preserved so he could raise them in a separate legal proceeding; or that he proceed with the separate litigation while the issue of the allocation of the mediator's fee be held in abeyance; or that he be allowed extensive discovery and depositions on his non-filed claims against third parties in the matrimonial proceeding.

In any event, as defendant's allegations against these non-parties were not part of the pleadings, i.e., were not a "complaint, counterclaim, cross-claim or third-party complaint," they were not subject to a Rule 4:6-2(e) motion to dismiss for failure to state a claim. Although defendant informed the court about his claims, they were not made as part of any formal pleading. Nor were any of the non-parties joined by way of an amended complaint. It follows that the court should not have considered the asserted future claims by defendant as they were not pleaded. Thus, we are constrained to reverse the trial court's determination that defendant did not state a cause of action cognizable under the law under the mediation statute as there was simply no complaint before the court to dismiss.5

Nevertheless, we are puzzled by the mediator's submission of a cross motion wherein she vigorously opposed defendant being granted any relief for his alleged future claims. We do not find any motion to intervene in the record. We are aware that Rule 1:40-4(b) provides that "[f]ailure to pay the mediator may result in an order by the court to pay the fees and costs of the mediator including any additional costs and fees incurred due to the non-payment and imposing appropriate sanctions." We were informed at oral argument that in several vicinages, this part of the Rule has been interpreted as allowing mediators to bring an order to show cause to get the fees paid.6 Assuming this is a reasonable interpretation of the Rule, this sentence does not make the mediator a party to the matrimonial action or give her the right, absent intervention, to file cross motions about prospective relief not concerning an unpaid bill. Nor does it require that all claims and counterclaims the parties may have against a court-appointed mediator become part of the matrimonial action. Cf. Sweeny, supra, 405 N.J. Super. at 592-94.

III.

Next, defendant argues that the trial court erred in ordering him to pay half of the mediation fees because in doing so, the court precluded him from later raising his non-filed claims related to the mediation. Defendant also contends that Rule 1:40-4(b) prohibited the trial court from "permitting [the mediator] to appear as counsel, for herself and/or her law firm in the parties' divorce proceeding" in order to collect on the unpaid mediation fees. Rather, defendant asserts that the proper venue for the mediator's claim for the unpaid mediation fees is in a separate proceeding in the Special Civil Part pursuant to Appendix XXVI to the Court Rules. Defendant does not, however, assert that the court lacked the authority to allocate the mediation fees between the parties.

Defendant's argument that the mediator was foreclosed from petitioning the court to get her bill paid because she was mandated by the applicable Guidelines to file suit in the Special Civil Part is unpersuasive. Rule 1:40-6(g), pertaining to mediation of civil, probate and general equity matters, provides that mediators "shall be compensated as provided by Rule 1:40-4(b) and Appendix XXVI." Rule 1:40-5, pertaining to family economic mediation, does not contain any reference to Appendix XXVI. That appendix, entitled "Guidelines for the Compensation of Mediators Serving in the Civil and Family Economic Mediation Program" states that it pertains to the Family Economic Mediation Program "where applicable." Pressler & Verniero, supra, Appendix XXVI at 2738. However, the Guideline does not say what section is applicable to the family economic mediation program. The Guideline further states that when the mediator's bill remains unpaid, he or she "may bring an action to compel payment in the Special Civil Part." Id. at 2740. We cannot read the term "may bring an action" as requiring an action be brought in Special Civil Part as the sole means for a mediator to get paid. We reject defendant's contention that Appendix XXVI applied to this mediation or prohibited the mediator from petitioning the court under Rule 1:40-4(b) for help with getting the bill paid.

As previously discussed in Point II, claims against non-parties do not have to be preserved in this matter. We also do not perceive that it was necessary for the court to address defendant's unfiled civil claims about the mediation in order to determine the allocation of fees. Indeed, defendant had no such claims against plaintiff. Moreover, this case had been pending for several years and the only minor issue left was the allocation between plaintiff and defendant of the mediation fees, claims for counsel fees and payment of an expert.

This was not a case where the parties reached a settlement and one party was seeking to vacate the settlement due to allegation of a conflict of interest, which very well might have required the court to determine alleged wrongs by the mediator. The mediator was not a party and all the parties' claims against the mediator were preserved because they were not being litigated. We will not imply that Rule 1:40-4(b), which allows the court to order the mediator to be paid, was intended to permit the parties to litigate every tort, contract or statutory claim arising from dissatisfaction with the mediation process. To imply this from the vaguely worded rule would needlessly entangle the Family Part in civil damage claims and potential jury trials.

It is well-established that the assessment of expert fees lies within the sound discretion of the trial court "[b]ecause the trial court [is] in the best position to weigh the equities and arguments of the parties . . . ." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 447 (2001). As such, "'fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Id. at 444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

In reviewing the mediation fees, the court determined that the mediation itself cost $10,028.78 and that $684.06 in interest had accrued. The court found that the mediation fees were reasonable given the mediator's experience and the fact that there were four mediation sessions. In allocating the fees, the trial court ordered the parties to equally split the cost of the mediation, with each party responsible for paying $5014.38. With respect to the interest, the trial court ordered defendant to pay $400 with plaintiff being responsible for the remaining $284.06 balance. Here, we are convinced that the trial court's allocation of the mediation fees was reasonable and in accordance with Rule 1:40-4(b). Thus, we decline to disturb it as the trial court did not abuse its discretion.

IV.

Next, defendant argues that the trial court improperly analyzed the Rule 5:3-5(c) factors in awarding plaintiff counsel fees. Specifically, defendant asserts that the trial court failed to take into consideration monies that plaintiff had, including alimony payments, in assessing the parties' ability to pay. Defendant also contends that the trial court award of counsel fees was arbitrary and based on the fact that he violated certain court orders. Finally, defendant asserts that the trial court erred in failing to conduct a hearing on counsel fees in accordance with Mayer v. Mayer, 180 N.J. Super. 164, certif. denied, 88 N.J. 494 (1981), and Johnson v. Johnson, 390 N.J. Super. 269 (App. Div. 2007). We disagree.

Rule 4:42-9(a)(1) provides that "[i]n a family action, a fee allowance . . . may be made pursuant to [Rule] 5:3-5(c)." Rule 5:3-5(c) sets forth nine factors for the court to consider in determining a fee allowance

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

The Supreme Court distilled these factors to their essence by explaining

[T]he court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.

[Mani v. Mani, 183 N.J. 70, 94-95 (2005) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)) (emphasis deleted).]

The decision whether to grant attorney's fees in a family action lies within the discretion of the trial judge. R. 5:3-5(c); Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). That determination will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine, supra, 141 N.J. at 317).

Here, defendant's argument that the trial court improperly analyzed the factors set forth in Rule 5:3-5(c) is without merit. The trial court found that defendant was in a better financial position than plaintiff, even taking into consideration plaintiff's assets and the income she received in alimony. Defendant, on the other hand, had a higher yearly income than plaintiff as he received $24,000 in Social Security, $44,000 from a bond account, and was the beneficiary of an account valued at $550,000. The trial court also found fault with the positions and conduct of both parties during the course of the litigation, noting that plaintiff made several demands that were either in error or were not adopted and that defendant "continually violated court orders," which resulted in sanctions.

Based on our review of the record, we find that the trial court's decision to award attorney's fees to plaintiff was an appropriate exercise of discretion. The trial court thoroughly analyzed and explained its reasoning under each of the factors listed in Rule 5:3-5(c). Contrary to defendant's argument, no one factor was given more weight than the others and the trial court's decision was appropriately based on the totality of all the factors. Consequently, we decline to disturb the court's fee award.

We also reject defendant's argument that a plenary hearing on attorney's fees was required under Mayer and Johnson. In Mayer, the court ordered a plenary hearing because the certifications and records submitted to the trial court were inadequate and lacked sufficient detail. Mayer, supra, 180 N.J. Super. at 167-69. In Johnson, the court ordered a plenary hearing because defendant was "challeng[ing] not only the reasonableness of the fee, but also the occurrence of certain events . . . ." Johnson, supra, 390 N.J. Super. at 275. Here, other than in his preserved non-filed claims, defendant was not challenging the reasonableness of plaintiff's counsel fees or arguing that the certifications lacked detail or were insufficient.

Here, the trial court properly rendered a decision on the counsel fee application. An expensive, time-consuming plenary hearing was not required in light of the fact that the trial court carefully reviewed the certifications submitted by the parties, had ample opportunity to review the record in this case, and observed counsel's performances at trial. See Segal, supra, 211 N.J. at 254-56.

V.

In her cross-appeal, the mediator argues that the trial court erred in denying her request for attorneys' fees for representing herself. Specifically, the mediator contends that under Rule 1:40-4(b) she is authorized to seek recoupment of the fees and other costs she incurred due to the non-payment of the mediation fees even though she represented herself. We are not persuaded and conclude that the trial court was correct in determining that Segal, supra, 211 N.J. at 254, controls.

In Segal, the Court considered whether an attorney, acting as a parenting coordinator appointed to serve in a matrimonial action, could recover attorney's fees for representing herself in that action. Id. at 234, 236. Both the trial and appellate courts granted the parenting coordinator's request for such fees. Id. at 244, 246. Addressing the fee issue, the Court reversed, stating, while there were competing interests, the "better rule" was that fee awards to self-represented attorneys should be disallowed. Id. at 263. There was "[n]othing about her status as a parenting coordinator [or as an attorney which] entitled her to be compensated for her time arguing in court for her fee or defending against [the plaintiff's] appeal." Id. at 260. To the contrary, the Court reasoned that a "self-represented attorney" should not gain an advantage and "be compensated for her time expended in securing relief when others who represent themselves would be precluded from being compensated for their time." Id. at 264. See also Albert, Goldberg, Butler, Norton & Weiss, 410 N.J. Super. 510, 547 (App. Div. 2009) (holding that even when counsel fees are available, "an attorney appearing pro se is not entitled to fees unless they are actually incurred as opposed to [merely] imputed"), certif. denied, 203 N.J. 93 (2010).

The same policy considerations apply here. Similar to the parenting-coordinator attorney in Segal, the mediator is both an attorney and a court-appointed mediator, and appeared pro se when seeking to recover the fees for the time she spent attempting to collect her mediator fee. Under Segal, however, as she was self-represented, she was not entitled to be compensated for her time spent collecting her fee. Segal, supra, 211 N.J. at 260. Thus, the trial court was correct in denying the mediator's request for attorney's fees.

Affirmed in part, reversed in part and remanded to the trial court for entry of an order consistent with this opinion.

1 Post-ESP mediation refers to post-matrimonial early settlement program. See R. 5:5-6(a). Parties are required to attend mediation to resolve the economic aspects of family law cases for at least two hours, after which mediation is voluntary. R. 5:5-6(b).

2 As the expert fees are not an issue on appeal, we will not discuss them further.

3 Defendant did not contend that plaintiff knew about the alleged conflict of interest or that he had separate claims against her due to the conflict.

4 Defendant received credit for $819 he already paid and was also ordered to pay $400 interest; plaintiff was responsible for the remaining $284.06 in interest.

5 Although we reverse the court's decision, we take no position on the issue of whether the challenged relationship in this instance was a conflict of interest under the mediation statute. Again, the issue was not properly before the court.

6 We are concerned that this matter is handled differently in different vicinages. Given the need for uniform practice in the State, we refer this matter to the appropriate Rule Committee to clarify and provide guidance on this issue. See State v. Blann, 429 N.J. Super. 220, 233 (App. Div. 2013), rev'd on other grounds, 217 N.J. 517 (2014).