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July 2, 2015


Submitted April 22, 2015 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1847-12.

Drazin and Warshaw, P.C., attorneys for appellant (Vincent L. Stripto, on the brief).

Paras, Apy & Reiss, P.C., attorneys for respondent (Bonnie M.S. Reiss, of counsel and on the brief; Michael J. Fleres, on the brief).


Defendant Brian Campbell appeals from the incorporation of a mediated but unsigned parenting time agreement with plaintiff Laura Campbell into the parties' February 6, 2014 final judgment of divorce. The parties have two sons, who were ages ten and six at the time of the agreement. The younger child has special needs and has in the past suffered from epilepsy. For the reasons that follow, we affirm.

The terms of the agreement reached during the October 15, 2012 mediation were reduced to writing by the mediator. Although the resulting Memorandum of Understanding (MOU) was unsigned, the case was thereafter reported to the court as "settled" with regard to parenting-time issues. Defendant, after filing an answer to the divorce complaint but before the mediation, had filed a parenting plan that sought the same parenting time allotted to him in the MOU with one exception. Under the MOU, rather than two week-night dinner visits, he enjoyed more time with his sons one weekly dinner visit and one weekly overnight.

In the MOU, the parties agreed to joint legal custody, with plaintiff designated as the parent of principal residence. The MOU also designated the parenting time for each party, including summer vacations and holidays.

The reasons for the delay in signing the agreement after the mediation session are disputed, but in the interim, defendant rejected the MOU unless plaintiff agreed to modify it to include two weekly overnights. Defendant then disputed other details such as: drop-off times, frequency of any review of the terms of the MOU, and whether his parents could transport the children. Plaintiff agreed to some but not all of defendant's proposed modifications. Defendant finally rejected the MOU in a December 7, 2012 letter, nearly two months after the mediation session.

On January 8, 2013, plaintiff filed a motion seeking to incorporate the MOU into the divorce decree. Defendant crossmoved to bar consideration of the MOU, to prevent disclosure of the discussions which occurred during negotiations, and to impose "monetary sanctions" on plaintiff for "blatant violation of the rule of confidentiality and defendant's mediation privilege."

In his supporting certification, although defendant stated he was not waiving the statutory mediation privilege, he also accused plaintiff of misrepresenting conversations during the mediation, and responded in some detail to her allegedly "inaccurate statements." He explained, for example, that going into the mediation, he knew he wanted two overnight visits every week and that the mediator had told the parties most judges would grant that request. Defendant asserted that he and not plaintiff compromised during the mediation session, and that he and not plaintiff suggested one dinner visit and one overnight weekly as an accommodation.

Defendant ascribed his change of heart regarding the MOU to his perception that plaintiff was, even after mediation, still uncooperative regarding his access to the children. Because he concluded that she would never voluntarily agree to an increase in time, thus requiring the parties to litigate the issues anyway, he saw no purpose in adhering to the MOU.

In granting the motion to incorporate the MOU into the divorce judgment, the Family Part judge observed that the children substantially benefitted from their parents' agreement, and that, if necessary, the MOU could be "tweak[ed] a little bit for the best interest[s] of the kids." He opined that the parties would bear a very substantial burden, in terms of expert's and attorney's fees and stress on their children, if they engaged in a pitched custody battle.

The judge thereafter supplemented his oral statement of reasons in writing. He reiterated the public policy encouraging settlements in family disputes as another basis for his enforcement of the MOU, adding that as long as they are equitable, spousal agreements are enforced like any other contract. Although after-the-fact defendant wanted to modify the MOU, initially in small ways and later more substantially, at mediation the parties had resolved their conflicts. Defendant's later change of heart was essentially irrelevant to the fact they had agreed. The matter was reported settled, and defendant's principal concern was only whether his during-the-week visits were both overnight, or one overnight and one dinner.

Now on appeal, defendant raises the following points







We do not disturb a trial court's factual findings where supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). And we pay particular deference to the Family Part's expertise in our review of such findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). But the legal consequences which flow from factual determinations "are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is also well-established that our system encourages and supports negotiated agreements between divorcing parties. Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) ("Voluntary agreements that address and reconcile conflicting interests of divorcing parties support our strong public policy favoring stability of arrangements in matrimonial matters." (internal quotation marks omitted)); Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) ("New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies."); O.P. v. L.GP., 440 N.J. Super. 146, 156 (App. Div. 2015) ("New Jersey has a strong public policy favoring enforcement of agreements in divorce cases." (internal quotation marks omitted)). Mediation is an alternative means of resolving parenting conflicts and is also available to resolve the "economic aspects of family law matters." R. 1:405(b)(2).

The statutory source for mediation is the Mediation Act, N.J.S.A. 2A:23C-1 to -13. Our Rules of Evidence set the parameters of mediation privileges. See N.J.R.E. 519. Indeed, our rules provide dispute resolution programs and, in certain specified cases, judges may "'require the parties to attend a mediation session at any time following the filing of a complaint.'" Ibid. (quoting R. 1:404(a)).

Our Supreme Court, after the judge's decision in this case, revisited the importance of mediation as a means of settling disputes. Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 254 (2013). The specific question addressed in that case is whether mediation agreements are enforceable in the absence of a signed document. Preliminary to its discussion, the Court stated that there are two exceptions to the mediation-communication privilege: a signed agreement and waiver. Willingboro, supra, 215 N.J. at 257-58.

Unlike in Willingboro, the agreement in this case was reduced to writing before the parties left the mediation session. They elected not to sign the document before reviewing it with their attorneys.

Obviously, as the court said in Willingboro, it is improbable, if not impossible, for a party to "prove a settlement was reached during the mediation without running afoul of the mediation-communication privilege." Id. at 259. Here, similar to Willingboro, the party opposing the MOU's enforceability effectively waived the mediation privilege by the manner in which he responded to plaintiff's motion. Defendant's discussion went beyond the document itself.

Defendant discussed his concerns regarding the MOU, described conversations between the parties during the mediation session, repeated statements made by the mediator, and outlined his rationale for ultimately rejecting the agreement, which stemmed from the amount of time he wanted with his children. Although his breach is not as extensive as that described in Willingboro, this agreement was not as complex. Defendant's breach results in a similar express waiver of his mediation privilege.

Defendant could have simply invoked the "protection[] of the Mediation Act and our evidence rules, which provide that 'a mediation party may . . . prevent any other person from disclosing[] a mediation communication.'" Willingboro, supra, 215 N.J. at 261 (quoting N.J.S.A. 2A:23C4(b)(1) and N.J.R.E. 519(b)(1)). He elected to do more than merely object to plaintiff's revelations.

The Court in Willingboro made "clear" that "going forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable." 215 N.J. at 263. We construe that language to mean that MOUs reached after the decision date will not be enforced unless signed by the parties, or otherwise recorded, such as by video. Willingboro was not in effect at the time this MOU was reached.

This judge was faced with parties who reached an agreement, then effectively waived their mediation privilege by litigating its enforceability. Defendant having done so, preWillingboro, it was not error for the judge to incorporate the terms of the MOU into the divorce decree. And, as the judge pointed out, the difference between what was agreed to and what defendant thereafter sought was no more than a "tweak," the difference between a weekly dinner visit as opposed to a weekly overnight visit. In the greater context of the expense and delay to the parties, and the stress to their children, we conclude that the judge did not err.

As the Court said

The mediation-communication privilege is intended to encourage candid and uninhibited settlement discussions. The rule requiring a signed, written agreement is intended to ensure, to the extent humanly possible, that the parties have voluntarily and knowingly entered into the settlement and to protect the settlement against a later collateral attack. A settlement in mediation should not be the prelude to a new round of litigation over whether the parties reached a settlement.

[Id. at 263.]

In this case, after the parties reached an agreement, defendant had a gradual change of heart. It triggered a new round of litigation over, essentially, whether a father who had everyother-weekend visitation, in addition to a during-the-week overnight visit, should see his child for dinner weekly or for an additional overnight.


Lastly, defendant contends that the matter should be remanded because the judge did not make adequate findings of fact or conclusions of law. There is no question that the judge did not discuss the mediation privilege in his decision. But it is clear from his discussion that he did not consider disclosure of the unsigned mediation document to be a breach of that privilege, and that he considered the document the equivalent of a signed agreement under the statute and evidence rules. Though it would have been preferable for the judge to articulate the assumptions underlying his analysis, it is nonetheless clear.

Given the circumstances, the judge's ultimate decision to incorporate the MOU into the divorce decree appears to be one made, pre-Willingboro, based on weighty equitable considerations that warrant enforcement of the document. We do not consider this point to warrant further discussion in a written opinion. R. 2:113(e)(1)(E).


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