Originally from Dispute Resolution Journal

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Mediations conducted in New Jersey are governed by The New
Jersey Uniform Mediation Act (UMA).1 Recently, in the seminal
decision Willingboro Mall Ltd v. 240/242 Franklin Avenue LLC, the
New Jersey Supreme Court held that a settlement agreement must be
in writing to be enforceable and the mediation-communication
privilege may not be waived unless it is expressly waived by all
parties to the mediation.2 This article aims to bring attention to
enforcing international commercial mediated settlement agreements
when New Jersey is the seat of the mediation. In order to gauge the
value of mediation in a cross border context, consider that 36.7 billon
dollars of international exports originated in New Jersey in 2013
representing more than 20,000 companies in international commerce;3
disputes will inevitably arise from such a large volume of commercial
activity. Now, assume you are a lawyer recently retained by a
corporate client to engage in a commercial mediation process in New
Jersey where the opposing party is from a jurisdiction outside the
United States. Although it may seem simple enough in principle, this
commentary attempts to highlight certain aspects of a dispute that a
practitioner should consider when involved in an international
mediation proceeding prior to arbitration. For example, assume the
parties agree to settlement terms which are thereafter formalized in a
written agreement executed by the parties and the mediator in
compliance with New Jersey law. However, following the mediation
you wish to enforce the settlement agreement in a foreign jurisdiction.
Unfortunately the agreement is a contract, and therefore its
enforceability may depend upon the predilections, whims, and
caprices of the national court system where enforcement is sought.