Whether or not a dispute between parties has been formalized by the filing of a complaint, parties are encouraged to resolve their dispute to avoid the time and expense of protracted litigation and the uncertain outcome of a trial. In New Jersey, many civil disputes are resolved by way of settlement conferences conducted by judges or by mediation. This article is a primer for attorneys new to civil litigation to identify key similarities, and differences, between settlement conferences and mediation.
The essential qualities of a judge and a mediator are the same: both are presumed to possess the necessary experience, skill, temperament, and trustworthiness to facilitate resolution of disputes. Mediators come from the ranks of experienced lawyers, non-lawyers with specific areas of expertise, and retired judges. Prospective mediators who wish to attain the status of “qualified” mediators under R. 1:40 must complete intensive mediation training offered by the New Jersey State Bar Association or other professional organizations. Qualified mediators are eligible to be placed on lists from which courts may appoint mediators on a given case. The litigants on such a case, however, may reject a court-appointed mediator and select one of their own choosing or may initiate the mediation process by privately retaining a mediator and notifying the court of their intention to pursue mediation, which almost invariably will be approved. Either way, most parties recognize the benefits of retaining an experienced, knowledgeable and respected mediator to help resolve a dispute through a process over which the parties can exert control.
Although the essential qualities of a mediator or a judge may be similar, their roles differ. Courts usually schedule settlement conferences unilaterally and at their convenience. Time constraints generally inhibit the flow of in-depth settlement discussions. Judges, not the parties, dictate the tenor of those discussions by giving the parties their assessment of the strengths and weaknesses of a given claim or defense and forecasting the probable outcome of the case were it to go to trial. Courts view settlement conferences principally as a case management tool to move their dockets. With judicial vacancies and the burgeoning backlog of aging cases plaguing the court system in recent years, some vicinages now schedule periodic “Mass Settlement Days,” assigning hundreds of civil cases to every available judge in the vicinage, regardless of the judge’s familiarity with the docket or the assigned cases and enlisting retired judges to volunteer their services as well. In this setting, neither judges nor parties have time to explore in-depth settlement strategies; an attorney’s role with his or her client may consist mainly of managing expectations and conveying settlement demands and offers within tight time frames. This is especially true of impromptu settlement conferences on the day of trial, where courts often induce settlements by leveraging a waiting jury panel.
Mediations, on the other hand, are scheduled at the convenience of the mediator and the parties, not at the convenience of the court. Although a judge, in the adversarial setting of a settlement conference, is typically the driving force in any settlement discussions, a mediator’s role is that of a facilitator to a resolution driven largely by the parties themselves. Mediation is not a case management tool in the hands of the litigants; it is a process steeped in the recognition that the parties themselves are best equipped to determine how best to resolve their differences and, if the parties deem it appropriate, salvage their relationship.
To that end, a principal role of the mediator is to engender trust and empathy with the parties. To do so may require the mediator to interact with the parties themselves. In a judicial settlement conference, a judge will seldom discuss settlement directly with a party in chambers, even with the attorney present; often, the parties are told to wait in the courtroom while the judge conducts negotiations with the lawyers in chambers. The exception is where a party is a self-represented litigant; discussions of any kind between such a litigant and the judge should always be conducted in open court on the record. In mediation, it may be advisable for the mediator to speak directly with a party, not only to engender trust and empathy, but to underscore the parties’ predominant role in formulating solutions to the problem at hand.
Pre-mediation conferences often set the tone and expectations for the upcoming mediation. At such conferences, conducted telephonically or via Zoom, a mediator can educate the parties about the role of a mediator and the importance of maintaining confidentiality in discussions between the mediator and the parties to promote the free and uninhibited exchange of potential solutions to the dispute. The parties, in turn, may educate the mediator; almost invariably, a mediator at a pre-mediation conference will request written mediation position statements from the lawyers in advance of the scheduled session to help the mediator understand the issues and facilitate possible resolutions. Such settlement position statements are sometimes, but not regularly, proffered by attorneys in advance of a judicial settlement conference. Where the judge conducting the conference is also the assigned pre-trial judge to the case, the court’s familiarity with the case is presumed, obviating the need for detailed position statements. For Mass Settlement Days, submitting written position statements is generally impractical.
Unlike judicial settlement conferences, which are almost invariably in-person, mediation can be conducted in-person, virtually, or in a hybrid in-person/virtual format by agreement between the mediator and the parties. The attorney for the party electing to participate virtually must ensure that both the attorney and the client have access to a platform such as Zoom that provides video and audio conferencing, and that the client’s device is equipped with a camera, speaker and microphone. All attorneys and the mediator must also ensure that no part of the mediation is recorded to preserve the confidentiality of the proceedings unless the parties expressly agree to waive confidentiality. Attorney discussions with a judge at a judicial settlement conference are generally not confidential, nor are they recorded unless one party to the settlement discussions is a self-represented litigant, in which case those discussions must take place in open court, on the record.
Often there is an informality in memorializing settlements reached following judicial conferences that case law proscribes when an accord is reached at mediation. Settlements reached at judicial conferences, especially at Mass Settlement Days, may or may not be placed on the record, although it is always advisable to do so. In most instances, the judge will simply advise the parties that the case will be marked settled or will execute a form order to that effect and leave it to counsel to draft the appropriate settlement documents and releases. Where agreement to essential terms is reached at mediation, those terms, if they are to be enforced, must be reduced to writing in a document signed by the attorneys and their clients called a “term sheet.” The term sheet should be prepared on the spot either by the mediator or the attorneys, before counsel, their clients, and the mediator disperse. In the alternative, the mediator or the attorneys may memorialize the agreed-upon material terms via an audio or video recording. Failure to either record or reduce to writing any verbal agreements reached at mediation may render the agreement unenforceable. See Willingboro Mall, LTD v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 262-263 (2013). Even if a case is not settled at a judicial conference or a mediation, both processes may help clarify or narrow issues in dispute and bring parties closer to settlement as the trial date approaches.
SUMMARY
Both judicial settlement conferences and mediation serve useful purposes. Settlement conferences help parties gain judicial insight into the merits and value of a given claim or defense, albeit in an adversarial setting in which the judge controls the negotiation process. Mediation provides a forum that empowers parties, with the facilitation of a mediator, to explore solutions to their dispute and, perhaps, to salvage their relationship if appropriate to do so. Both processes may help parties avoid protracted and costly litigation, as well as the uncertainty of outcome at a trial.
Reprinted with permission from the August 22, 2025 edition of The New Jersey Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.