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Negotiations and our Legal System

Today, Your Legal Corner will discuss "Negotiations and our Legal System."

Growing up in a family of six, often my parents would receive an overly zealous "Santa" gift list; to which they would then carefully respond, "Santa can't bring everything." Surprisingly, on Christmas morn, as children, we were seldom disappointed as mom and dad always told Santa what we wanted most.

Whether we realize it or not, negotiation and compromise are an integral part of life. We are constantly reaching agreements with family, friends, business associates and adversaries.

We live in a litigious society. According to a Harvard study, U.S. residents file more lawsuits and have more lawyers than any other country. Our legal system relies upon negotiations to resolve a significant number of both civil and criminal cases.

Civil Mediation

In New Jersey, parties to a civil lawsuit can refer their case to mediation. Mediation is a dispute resolution process in which an impartial third party facilitates negotiations between the parties. The goal of the mediator is to help the parties reach a mutually acceptable settlement. Mediators, after an initial free one-hour session are paid their usual hourly rate that is split by the parties.

Under N.J. Court Rule 1:40-12, mediators must meet educational, training and mentoring requirements established by the court system. A list of mediators can be found on the Judiciary's website at njcourts.com. Parties or their lawyers must agree on the mediator within 14 days of referral, otherwise the court will appoint the mediator.

At the mediation session, each side will make brief presentations about the issues of the dispute. The mediator will assist the parties to explore areas of possible compromise and attempt to develop a solution that meets everyone's interests.

Advantages of Mediation

Mediation has advantages over the traditional litigation process. Importantly, it is cost efficient saving both time and money. The outcome can be tailored to meet the unique needs of the parties. Also, resolutions reached through mediation are confidential, allowing parties to keep sensitive information private.

Resolution and compromise does not just occur in civil matters. Criminal cases also involve discussions between the prosecutor and the defense attorney in an effort to resolve a case before trial.

Plea Bargain in Criminal Court

Criminal cases involve fairly high stakes where a person's liberty hangs in the balance. Negotiation between a prosecutor and defense attorney are called plea-bargaining. If they are able to resolve the charge, it is called a plea agreement.

In a typical plea agreement, the prosecutor may recommend a reduced sentence of incarceration or probation in exchange for the defendant pleading guilty. A defendant must certify that they are entering into the plea agreement freely and voluntarily since they are giving up their constitutional right to a jury trial and question the witnesses against them.

Most criminal cases are resolved prior to trial with plea bargains making up a substantial part of those resolved cases.

Santa has now made his rounds and after careful negotiation, in most cases, has met the expectations of children throughout the world. It is time to relax and rest!

Till next time, God bless, keep smiling, when Your Legal Corner, will discuss the legal importance of retaining an accountant.

Victoria M. Dalton is an attorney with the law offices of Hoffman DiMuzio. Send questions, or comments to Victoria at [email protected] Or call 856-845-8243. Please note that Your Legal Corner was created to provide educational articles about the law and is not legal advice. To view other YLC articles, see HoffmanDiMuzio.com.

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