Case Summary: State v. Williams, 877 A.2d 1258 (N.J. 2005)
Whether a court-appointed mediator may testify in a subsequent criminal proceeding regarding statements made by a participant during the mediation.
Disputants, mediators, and nonparty mediation participants may refuse to disclose and prevent any other person from disclosing a mediation communication. However, the privilege yields if the court determines that: (1) the mediation communication is offered or sought in a criminal proceeding; (2) the need for the evidence substantially outweighs the interest in protecting confidentiality; and (3) the evidence is not otherwise available.
This case arose out of a deteriorating family relationship between Carl Williams and his brother-in-law, Brahima Bocoum. One evening Bocoum and other family members called Williams and left several taunting messages. Williams then went to Bocoum's house where the two engaged in a physical altercation. During the fight, Bocoum received a severe cut on his arm, which he claimed resulted from a machete wielded by Williams. The police were called and Williams was later arrested and indicted on one count of aggravated assault and two counts of possession of a weapon. After his arrest, William filed a harassment complaint against his Boucoum for the taunting phone messages. Pursuant to New Jersey Supreme Court Rule 1:40-4, the court appointed a mediator in an attempt to resolve the harassment complaint. The mediation did not result in settlement and the matter was referred back to municipal court. At trial, Williams asserted that he was acting in self-defense after Bocoum hit him in the shoulder with a shovel. Williams offered the mediator as a witness for the defense. Outside of the jury's presence, the mediator stated that, during the mediation, the brother-in-law said that he had wielded the shovel. The trial court excluded the testimony under Rule 1:40-4(c), which prohibits a mediator from testifying in any subsequent proceeding. Williams was convicted of third-degree aggravated assault and a weapons possession charge. He appealed his conviction and sentence. The Appellate Division upheld the trial court's exclusion of the mediator's testimony and the New Jersey Supreme Court granted certification as to the question of the use of the mediator's testimony.
Finding that the defendant failed to prove that: (1) his need for the testimony outweighed the interest in mediation confidentiality, and (2) that the evidence was not otherwise available, the New Jersey Supreme Court upheld the decision to exclude the mediator's testimony. This case is notable because it is the first instance where a court has upheld the mediation privilege while applying the Uniform Mediation Act's (UMA's) analytical framework. Ironically, the court utilizes the UMA's framework despite the fact that New Jersey did not adopt the UMA until after the events at issue in this trial had occurred.
Another unique aspect of State v. Williams is the case's facts, which read like a law school mediation exam. As the evidenced by the dissent's conclusions, the court could have easily come out the other way after balancing the defendant's need for the testimony against the interest in mediation confidentiality. Additionally, the differing ways in which the majority and dissent apply the facts to the balancing test provides rare insight into challenges which lie ahead in the application of the UMA's mediation confidentiality provision.
For example, to determine the weight of the defendant's "need" for the mediator's testimony, the majority asked whether the "testimony is ‘necessary to prove' self-defense." In its analysis, the court looked to the probative value of the mediator's testimony. Calling into question the reliability and trustworthiness of the mediator's testimony, the majority did not think it had sufficient probative value to be deemed "necessary to prove" self-defense. The court also noted that the mediator's testimony did not corroborate the defendant's description of the events which transpired the evening of the fight because the defendant argued he had been hit with the shovel, but the mediator could only testify that Bocoum "wielded" a shovel. Thus, because the mediator's testimony did not have sufficient probative value, it was not necessary "prove" self-defense.
The dissent, on the other hand, looked to whether the evidence was "relevant and necessary to the defense of a criminal case" to determine the defendant's "need" for the mediator's testimony. The dissent argued that because the mediator's testimony attacked Bocoum's credibility on the "fundamental issue of the case: self-defense," "the mediator's testimony was obviously "‘relevant and necessary' to the defense." Furthermore, she noted that the quality of the mediator's testimony was to be assessed by the jury and should not be considered in determining the admissibility of the testimony.
The majority and dissent also disagreed as to whether Williams showed that evidence of Bocoum's shovel-wielding was "not otherwise available." The majority found that sufficient evidence of Bocoum's use of the shovel and his previous inconsistent statement was not only available, but was in fact provided by other defense witnesses, including the defendant himself. Therefore, without the mediator's testimony, Williams had ample opportunity to support his self-defense argument. On the contrary, the dissent argued that the objectivity of the mediator in this case, as opposed the other biased witnesses, rendered his testimony "not otherwise available."
In sum, State v. Williams raises several questions regarding how the UMA's analytical framework could be used to determine whether a defendant has overcome the mediation communication privilege. The majority opinion provides an excellent description of the rationale for mediation communication confidentiality and clearly holds the privilege in high esteem. In this regard, Section IV(A) of the majority opinion, which describes the substantial interest in protecting mediation confidentiality, should not be overlooked. It thoroughly explains the social and legal significance of mediation and describes critical role that confidentiality plays in the mediation process.