Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, L.L.C. (069082)
215 N.J. 242
| N.J. | 2013Background
- Mediation followed a foreclosure action; Willingboro and Franklin engaged in non-binding mediation on Nov 6, 2007, in Franklin’s office.
- During mediation Franklin offered $100,000 for settlement and discharge of the mortgage; Willingboro’s Scott Plapinger orally accepted in the mediator’s presence.
- The settlement terms were not reduced to writing during the mediation.
- Franklin sent a Nov 9 letter memorializing the purported terms and a Nov 20 letter about funding; Willingboro rejected and did not sign a release or discharge.
- Franklin moved to enforce the settlement and produced certifications with mediation communications; Willingboro sought discovery and an evidentiary hearing.
- The trial court and Appellate Division found that Willingboro waived the mediation-communication privilege and that a binding oral settlement existed, though not reduced to writing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 1:40-4(i) requires a signed writing at mediation for enforceability | Willingboro argues no enforceability without contemporaneous signing | Franklin argues signing not required if terms memorialized promptly | Written signed agreement required for enforcement going forward |
| Whether Willingboro expressly waived the mediation-communication privilege | Willingboro asserts it did not waive privilege | Franklin contends waiver occurred on record via deposition/evidentiary proceedings | Willingboro expressly waived the privilege on the record; conversations disclosed were admissible only due to waiver |
Key Cases Cited
- Knorr v. Smeal, 178 N.J. 169 (2003) (waiver requires clear, unequivocal surrender of rights; express waiver required)
- Beazer East, Inc. v. Mead Corp., 412 F.3d 429 (3d Cir. 2005) (oral settlements in mediation cannot bind absent signed writing; LAR guidance cited)
- Williams v. Williams, 184 N.J. 432 (2005) (public policy favors settlement and confidentiality of mediation)
- Country Chevrolet, Inc. v. Tp. of N. Brunswick Planning Bd., 190 N.J. Super. 376 (App. Div. 1983) (waiver and scrutiny of privilege on record)