(a) New Jersey Judiciary Website (http://www.judiciary.state.nj.us/services/cdr.htm)
(b) Rule 1:40 of the New Jersey Court Rules (available under the references page)
“Neutrality is the essence of the mediation process. The rule itself embodies a fail-safe provision permitting termination where party challenges the impartiality of the mediator.“
-Isaacson v. Isaacson, 792 A. 2d 525 – NJ: Appellate Div. 2002 at 534
Court Appointed Mediators are some of the first people to greet you when you arrive at landlord tenant court and small claims court. Mediators are like people in any other profession – there are good ones and there are bad ones. You have to watch out for both. The bad ones will steer you wrong and perhaps misinterpret some finer points of the law. The good ones become a threat when they start playing for the other team. Picture you, the big bad landlord, trying to collect rent, from the poor defenseless tenant who, by the poor and unfortunate circumstances of life, has failed to pay his or her rent. What’s a good mediator to do? Well, they are supposed to remain neutral, but its hard to not feel bad for the underdog. In my experience, and indeed, in the experience of many a landlord, the mediator will dance very close to that neutral line. In some cases I’ve seen the mediator turn into counsel for the tenant. If this happens to you, know that you have rights.
Here’s an actual example: Landlord and Tenant are at court on on the 25th of the month. Tenant is 25 days late on his rent and does not have the full amount. We’ll call this amount that is past due – “arrears” simply because lawyers love to use fancy words. Landlord wants tenant to pay balance of rent arrears by the 1st day of the next month (in 6 days). Landlord is aware that if tenant pays the arrears by the end of the month the claim will be extinguished. This is a bad thing because logic would dictate that if the tenant is late 25 days and will pay at the end of the month he probably is going to pay his next month’s rent late as well. Landlord knows that he will have to start the same process all over again if tenant extinguishes his claim by paying before the 1st.
According to the Court’s settlement forms whatever rent tenant pays to the landlord after the 1st of the month, by law, goes toward the current rent due for that month, and not the arrears. The result is that the landlord still maintains his claim against the tenant while collecting the next month’s rent. More importantly, he doesn’t have to file again to evict the Tenant!
Tenant, not aware of the complexities of the law, agrees to pay the arrears in six days (by the 1st of the month). Tenant agrees to sign the settlement form. Then, after it would appear that both parties had made an agreement and no longer need the services of the Court, the NEUTRAL mediator, takes it upon himself to deliver a crushing blow to the landlord by turning to the tenant and saying, “[Tenant] if you pay on the 1st of the month, you will owe next month’s rent as well…..so can you pay before the 1st, like Thursday (the last day of the month), ” to which tenant says, “sure, I can pay then.”
The result is awesome for the tenant, he pays his rent 30 days late, and not surprisingly doesn’t have the next month’s rent on time either, and now landlord has to re-file and take another day off from work to show up in court! Cost to landlord: Two days off from work, Twice the filing fees, twice the paperwork and twice the frustration.
So What do you do in this situation. At least three possibilities here:
(1) Terminate mediation pursuant to Rule 1:40-4 on the grounds that the mediator has shown impartiality – go before the judge.
(2) Ask the mediator how much the tenant is paying him to be his lawyer?
(3) File a complaint against the Mediator with the Assignment Judge of the Court (see reference (b))