NJDCR 26

(a) Matters subject to mediation.

(1) Unless an action is exempt pursuant to subsection (m) of this rule, all district court actions that involve a dispute regarding child custody, access, or parenting time shall be referred to mediation.

(2) Mediation of the dispute by the approved family mediators or by private mediator must take place before the trial or any hearing on custody, access, or parenting time, unless waived by the court.

(b) Referral for mediation by the court. Referrals to mediation made by the court pursuant to subsection (a) of this rule shall be to approved family mediators.

(c) Referral for mediation by individual party. If there is a disagreement between the parties concerning custody, access, or parenting time, and the matter has not been referred to mediation by the court, either party or both parties may file with the Clerk of the Court and serve upon the other party, or counsel a “Request for Mediation.” The court may then refer the matter to an approved family mediator.

(d) Private mediation, selection.

(1) Parties may select by agreement a private mediator.

(2) The parties shall contract directly with the private mediator and be responsible for payment of fees for mediation services.

(3) The mediator has a right to withdraw from any case.

(e) Private mediation, written notice to court. If a private mediator is selected, the parties or counsel, if any, shall file with the court a written notice that private mediation will take place. The notice shall set forth the name of the mediator and the date set for the first mediation conference.

(f) Scheduling mediation. Upon referral to the approved family mediator, an orientation and conference will be scheduled that both parties must attend, unless other procedures are agreed upon pursuant to this rule.

(g) Mediation conference.

(1) The mediator will conduct a conference in an effort to carry out the purpose of this rule.

(2) Counsel for the parties shall be provided an opportunity to confer with the mediator prior to the mediation conference and shall be excluded thereafter, when, in the discretion of the mediator, exclusion of counsel is deemed by the mediator to be appropriate or necessary.

(3) The mediator shall be entitled to interview the child or children when the mediator deems such interviews appropriate, unless a protective order is sought and obtained.

(h) Mediation report.

(1) If the mediation is successful in resolving any of the custody, access, or parenting time issues, such resolution shall be reduced to writing and submitted to the court for approval.

(2) In the event that no resolution is reached, the mediator shall notify the court that mediation has been unsuccessfully concluded.

(i) Failure to participate in mediation. If one or both parties fail to appear at any mediation conference, or fails to participate in good faith, the mediator shall report to the court the identity of each person who failed to appear or participate. The court shall thereafter take whatever action it deems necessary or appropriate, including imposing any of the sanctions described in NJDCR 23.

(j) Confidentiality of mediation. Mediation proceedings shall be held in private, and all communications, verbal or written, made in the proceedings shall be confidential and shall not be disclosed except upon waiver of the privilege by both parties, and their respective attorneys if they are represented, except:

(1) Where the mediator is required to report any information that falls within the scope of the child abuse reporting requirements; or

(2) Where the court has issued an order for open mediation prior to the commencement of the mediation.

(k) Subsequent evaluation. The approved family mediator or private mediator shall not conduct an evaluation of the parties after an unsuccessful mediation unless the parties file a written notice consenting thereto signed by each party and counsel, or such evaluation is ordered by the court.

(l) If an Order for Protection Against Domestic Violence has been obtained by either party against the other, an order of referral to mediation shall include:

(1) The fact that an Order for Protection Against Domestic Violence has been obtained; and

(2) The case number of the protection order action.

(m) Exemption from mediation. A party who believes a case is inappropriate for referral to mediation may seek an exemption from mediation. The party seeking an exemption must file a motion with the court. The motion should be filed with the initial pleading of the moving party, but may be filed at a later time if new information is obtained supporting a motion.

(n) Inappropriate cases.

(1) Mediation is not appropriate when:

(i) There are substantial allegations of child abuse or neglect.

(ii) The case involves multiple social agencies or psychiatric contacts for parents and/or children.

(iii) A parent has serious psychological problems or has displayed severe anti-social modes of behavior.

(iv) The mediator or the court determines mediation will be futile or impractical.

(2) Mediation may be inappropriate when:

(i) The case is at the post-dissolution state and has involved protracted litigation;

(ii) An order pertaining to protection against domestic violence has been entered; or

(iii) There are substantial allegations of domestic violence between the parents, or between a party and another member of the family.

(o) Support persons. A party may have a third party present for support before and after meetings with the mediator. The support person may not be present during mediation sessions, unless both parties and the mediator agree.

(p) Fees for service. For mediation not otherwise covered by subsection (d)(2), fees may be assessed to parties referred to mediation pursuant to NRS 3.500(2)(e) and in accordance with the fee schedule approved by the court. Unless otherwise directed, each party is required to pay one-half the fee of the court-approved mediator. Payment will be made to the Clerk of the District Court. The payments shall be made promptly, using procedures for such payment established by the County Clerk.

(q) Failure to pay fees for mediation. In the event that either party fails to pay the mandated fees for mediation, the Court Clerk or the court-approved mediator shall contact the court and report such failure. The court may enter such further orders, including contempt orders, necessary to ensure prompt payment of the fees.