Newsletter September 2016

Newsletter September 2016


Ty Hyderally, Esq.September 2016 Newsletter

Alternative Dispute Resolution or “ADR” is just that – an alternative method for resolving a legal dispute rather than filing a complaint in a judicial forum. ADR encompasses a variety of alternate methods to resolve cases. These include various forms of arbitration and mediation, whether voluntary or mandatory. Parties may choose to participate in ADR pre-litigation – that is, before ever going to court, in an effort to avoid litigation altogether. Parties may also voluntarily agree to participate in ADR during various stages of litigation, in an effort to avoid further costs arising from protracted litigation. Courts may also compel parties to participate in arbitration or mediation while the case is pending in court, and thereby reduce the number of cases on its typically overcrowded docket. In addition, parties may be bound by a previously signed agreement to arbitrate and/or mediate a legal dispute.

Arbitration and mediation differ in a number of ways. Arbitration generally results in a decision that is made by the arbitrator, after the parties have an opportunity to present evidence and cross-examine witnesses, similar to a court proceeding. However, an arbitration hearing is somewhat less formal than a trial, follows procedural rules for the particular type of arbitration that is being conducted, and abides by a more relaxed application of the rules of evidence. An arbitrator’s decision may or may not be final and may be challenged in certain circumstances. Arbitration is normally favored by employers and incorporated into their policies or employee handbook. However, the New Jersey Appellate Division recently held that an arbitration provision included in an employee handbook which also contains language disclaiming that it constitutes an employment contract, is not enforceable. In Morgan v. Raymours Furniture Co., 443 N.J. Super. 338 (App. Div. 2016), the Court relied upon equitable principles in holding that an employer cannot get “both the benefit of its disclaimer in most instances, while insisting that the handbook was contractual when it suits its purposes — a proposition to be rejected if for no other reason than it runs counter to the ancient English proverb: ‘wolde ye bothe eate your cake, and haue your cake?’ John Heywood, Dialogue of Proverbs (1546).” Id. at 342. - See more about the enforceability of employer arbitration agreements at:

Unlike arbitration, mediation is conducted by a neutral third party, the mediator, who has no authority to make any decisions. Rather, the mediator’s impartial role is to facilitate the parties in voluntarily reaching a resolution of their dispute. The mediation occurs in an informal setting, with parties either sitting around a table, or in different rooms. The mediator may engage in a form of “shuttle diplomacy” moving back and forth between the parties, engaging various techniques to bridge the gap between the parties’ respective positions. However, the parties are not obligated to settle their controversy at mediation. If mediation is unsuccessful in resolving the dispute, the matter normally continues in another forum. In contrast, an arbitrator functions much like a judge, and renders a decision and often an opinion, based upon evidence and testimony presented at a formal hearing. Mediation also differs from arbitration in that it offers the parties the opportunity to fashion unique remedies and protections incorporated into a settlement agreement negotiated by the parties. Arbitration, on the other hand, results in a decision rendered solely by the arbitrator, usually without any input from the parties.

While they differ in a number of ways, arbitration and mediation both offer certain similar advantages over traditional litigation. They both provide quicker paths to deal with a legal dispute than traditional litigation, which is often long and protracted. They also both save not only time but substantial fees and costs as compared to traditional litigation. There is also the emotional strain caused by prolonged litigation that may be lessened if the matter proceeds through a more expeditious process of mediation and/or arbitration.

By Francine R. Foner, Esq.


Ty Hyderally, Esq.

Alternate dispute resolution programs in New Jersey state court, including mediation and arbitration, are governed by New Jersey Court Rules 1:40-1, et seq. Mediation is more specifically governed by the General Rules for Mediation provided in R. 1:40-4 (“Mediation Rules”), as well as the New Jersey Mediation Act, N.J.S.A. §§ 2A:23C-1 to 2A:23C-13, and the rules of evidence, N.J.R.E. 519. The General Rules for Mediation cover such areas as confidentiality and the conduct of the mediation proceedings.

Confidentiality is a touchstone of the mediation process. As the New Jersey Supreme Court observed in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242 (2013), “[t]he success of mediation as a means of encouraging parties to compromise and settle their disputes depends on confidentiality,” so “our court and evidence rules and the Mediation Act confer a privilege on mediation communications, ensuring that participants’ words will not be used against them in a later proceeding.” Id. at 255. Therefore, as the saying goes “what goes on in Vegas stays in Vegas” can generally also be said of mediations – what goes on in mediations stays in mediations. The Mediation Rules thus provide that “Unless the participants in a mediation agree otherwise or to the extent disclosure is permitted by this rule, no party, mediator, or other participant in a mediation may disclose any mediation communication to anyone who was not a participant in the mediation.” R. 1:40-4(d). In addition, communications made at mediation are generally not subject to discovery or admissible in evidence in a proceeding. Marina Del Rey Assocs. v. Community Realty Mgmt., 2016 N.J. Super. Unpub. LEXIS 1873, *10-11 (App. Div. Aug. 10, 2016); N.J.S.A. 2A:23C-4(a); accord N.J.R.E. 519(a). However, an exception to this rule exists where “the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: . . . (2) . . . a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. N.J.S.A. 2A:23C-6(b)(2). A party may also establish the substance of a confidential mediation communication in any proceeding by independent evidence. R. 1:40-4(c). Also, a mediator may disclose a mediation communication “to prevent harm to others to the extent such mediation communication would be admissible in a court proceeding.” R. 1:40-4(d). Finally, a mediator “has the duty to disclose to a proper authority information obtained at a mediation session if required by law or if the mediator has a reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm.” R. 1:40-4(d).

The Mediation Rules also require that all parties and their counsel “participate in the mediation process in good faith and with a sense of urgency in accordance with program guidelines.” R. 1:40-4(g). However, there is no definition of what does or does not constitute “good faith” within the meaning of the Mediation Rules. Rather, “[t]he Rule is silent as to the definition of “good faith,” a “concept that defies precise definition.” Hudson City Savings Bank v. Colyer, 2013 N.J. Super. Unpub. LEXIS 263, *22-23 (Ch. Div. Feb. 4, 2013) citing, Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224 (2005). In fact, while a court may compel parties to attend a mediation session and participate in “good faith,” they cannot compel a party to settle. So is it bad faith if a party fails to make an offer or takes a “no pay” position at mediation?

There is scarce case law interpreting the meaning of “good faith participation” in mediation. In the unpublished and therefore nonbinding decision in Hudson City Savings Bank, the defendant borrowers moved to dismiss the bank’s complaint for foreclosure upon the ground that the lender failed to mediate in “good faith” as required by R. 1:40-4(g). Hudson City argued that its reliance on the internal set of guidelines to deny a loan modification was by itself sufficient to sustain a finding of good faith participation in mediation. The Hudson City Savings Bank Court’s decision set the bar on what qualifies as “good faith participation” incredibly low. First, it placed the burden on the party challenging the good faith of the adverse party to provide expert testimony on whether the defendant’s criteria for its position at mediation were unreasonable or were applied unreasonably. This would appear to require that any time a party claims their adversary should be held accountable for its failure to participate in mediation in good faith, they must retain an expert in the field at issue, to opine on the reasonableness of their adversary’s conduct, where the adversary claims to have relied upon internal policies in rejecting a settlement proposal. This certainly turns the concept of mediation on its head, as the mediation process is intended to streamline and reduce litigation costs, such as expert fees, not add to them. The Court further held that absent such expert testimony, only where a party “sit[s] with its arms crossed without intending to entertain any proposal” can lack of good faith be established. Such a standard gives parties who fail to mediate in good faith an easy out, as they can always say that they gave due consideration to any offer but based upon their business judgment decided to reject it. Nonetheless, it does appear to at least mandate that the parties engage in some negotiation and cannot simply refuse “to entertain any proposal” at mediation.

Thus, there have yet to be any cases which give any significant “teeth” to the “good faith” requirement. Rather, it appears that good faith participation in mediation is satisfied by merely showing up at the party and not crossing one’s arms.

By Francine R. Foner, Esq.



Ty Hyderally, Esq.

You have been at mediation for several hours and the mediator happily informs you that the other side has agreed upon your last proposal to settle the case. You are relieved that the matter has been settled and get up to leave. Not so fast. Once the parties come to an understanding of the settlement amount and essential terms at mediation in New Jersey, the mediator has an obligation to reduce the settlement to a signed written agreement, or the settlement will not be enforceable. Willingboro Mall Ltd. supra at 245. The mediator will therefore either write up the parties’ agreed upon “essential” terms or have counsel write up an agreement, which is then signed by all parties, subject to a more formal and usually much longer formal settlement agreement to be drafted and signed thereafter. In addition, counsel may have come to the mediation with a pre-drafted formal settlement agreement which the parties then may review and revise as necessary, and sign at the mediation.

In the employment litigation context, the formal settlement agreement includes a number of typical provisions to protect the interests of both the employer and the employee. From the defendants’ standpoint, of primary concern is a general release of claims, as well as release of a myriad of specified claims that the plaintiff releases in exchange for the settlement. In addition, a provision regarding the confidentiality of the settlement is often of critical concern to an employer, as well as tax indemnification language. Other common terms include a mutual non-disparagement clause, a provision that the employer will not contest any unemployment claim, a neutral job reference, and characterization of the settlement monies as gross funds for which a 1099 will be issued, and/or payments from which withholdings will be taken and a W-2 issued, and/or attorney’s fees. There is also often a provision governing what happens in the event either party breaches the settlement agreement.

By Francine Foner, Esq.


These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

  • “I want to sincerely thank you and your staff for your resolve and professional zeal in resolving my issues with [company name removed for privacy reasons]. I especially want to thank Rob Szyba who handled these proceedings with dignity and a great deal of knowledge and professionalism. He knows what buttons to push and when to push them. He is an asset to your organization. I will gladly recommend your services to anyone in need. It was a privilege to deal with you and your team.”
  • “It has been my pleasure to work with Ty through the ABA's Employment Rights and Responsibilities Committee. His contributions to the Committee have been significant due to his knowledge of employment law and his tireless devotion to teaching trial skills. His service to the profession and his clients is commendable.”
    Paula Ardelean
  • “Ty is dedicated to his work and his clients. He knows his stuff, and he goes the extra mile to do the best job possible. Ty is a pleasure to work with!”
    Piper Hoffman
  • “It is with pleasure that I recommend Ty. He is a tireless advocate on behalf of employees and their concerns. His efforts are demonstrated not only in his practice, but also in his exceptional additional efforts to represent this community in professional associations, such as the ABA. He has the knowledge base and the tireless effort that makes working with him productive, but always enjoyable too.”
    Darlene Vorachek
  • “I have worked with Ty on several legal presentations. I represent employers, and Ty has invited me to participate as a panelist representing employers' perspectives on labor and employment matters. Ty is always well-prepared and very knowledgeable about developments in employment law, and is always a pleasure to work with.”
    Chris Dalton
  • “Ty is an excellent lawyer who completely understands the legal process and does everything in his power to help his clients. He was a pleasure to work with and would recommend him to anyone seeking his expertise.”
    Joseph Alvaro
  • “Ty is a widely recognized expert in the area of employment law. His aggressive representation of clients is backed up by an extraordinary breadth of knowledge and attention to detail.”
    Edward Kopelson
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    Betsy Zaplin
  • “Ty was a great help for my associate and I during litigation. He showed the highest degree of professionalism and did in fact help us to achieve the best end result possible. Mr. Hyderally comes highly recommended.”
    Christopher Power
  • “Ty is an exceptional attorney. Ty strives for and attains great results, in a fair and ethical manner. I value his professionalism, integrity and creativity. His ability to relate to the client and colleagues on various levels makes him very personable and a real asset.”
    Betty MacKnight
  • “Ty Hyderally is a light of hope at times when all seems grim and hopeless. A brilliant lawyer focused on labor and business law. Mr. Hyderally has the ability to combine his knowledge of the law with economic sense, strategic thinking and level headed decision making that more often than not results in a sensible conclusion that ultimately equates to a positive result for his client. Mr Hyderally is a pleasure to work with and a person you would want to have on your side of the table.”
    Richard Sapienza
  • “I have known Ty Hyderally and his firm for a number of years through our shared affiliation with the National Employment Lawyers Association. Ty has consistently impressed me both with his leadership qualities as well as the quality of workmanship that he and his firm generate. I have reviewed some of his firm's work product, including a sample initial client letter, which not only contained excellent advice to new clients but also included cutting edge information as to how to properly address social networking issues. Without hesitation, I would highly recommend Ty Hyderally.”
    Fred Shahrooz Scampato
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    Mike Fischer
  • “What impressed me most about Ty was that he delivered exactly what he promised! Very well versed in his area of practice, and extremely respected by his peers and colleagues, which put me at ease knowing he was representing me! Thank you Ty!”
    Dan Verdun
  • “I have been involved with Ty Hyderally both as an adversary in employment litigation, and when I have acted as a Court appointed Mediator in employment litigation matters in which Ty represented plaintiffs. In both types of situations, he has represented his clients very well, with an excellent command of the issues, and he has shown himself to be well-prepared, reliable, and sensitive to the concerns of his clients. He has conducted himself in a highly professional manner at all times. I have referred potential plaintiffs in employment matters to him (I represent management/defendants in such matters), since I believe he is highly qualified to consider their circumstances.”
    Wayne Positan
  • “Ty helped us in my small business with a very delicate matter involving what was once a very cherished employee who had made some bad choices. Because it was also emotional for me and my management team, we valued the professionalism and expertise that Ty offered. It was comforting to know we could rely on his service through that very challenging time and handle it with compassion and in compliance with the law. I would use him again and recommend him wholeheartedly!”
    Sherry Blair
  • “Ty is detail oriented yet moves quickly to get results. He contemplates each step and what action should be taken. Ty looks out for his client's best interest and is available to talk during evening hours when it is more appropriate to discuss options to take from home. Also, Ty is expedient in getting information needed in order to be cognizant of finances. I highly recommend Ty for legal services, especially with employment law.”
    Jeff Martens
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    Jeff Baron
  • “Ty Hyderally is a lawyer's lawyer. I, also, used to handle plaintiffs' employment cases, but over time, those cases became more and more complicated and costly to pursue. They began to require the attention of a legal specialist. I decided against handling them personally. I was delighted when I met Ty. Now, I refer people to him all the time. I know that he will give the best advice and get the best results possible. I hope my employees don't have his card.”
  • “Many of my executive clients need to negotiate employment contracts or employment confilcts with their employer. As an executive coach, I support their efforts in all domains of their lives including recommending a lawyer when they have these employment contractual needs, I recommend Ty. Not once have I had any negative feedback from any client and all of my dealings with him have been very satisfying.”
    Dan McNeill
  • “Ty is a very knowledgeable Attorney, who has demonstrated a very proven track record in handling Employment cases. His knowledge and assertive approach have made him a very successful Attorney.”
    John Mcnamara
  • “I actually first worked with Ty at McKenna McIlwain LLP in 2008. Already I was impressed by his professionalism, client list and reputation. In 2011 I moved back to Montclair after a few years back home in Oregon. Ty was in need of a temporary administrative assistant and invited me to join his team at their new, independent location. I learned a great deal working with Hyderally & Associates, P.C. They have earned their reputation as the hardest hitting, best representation available for employment matters in New Jersey and New York alike. They are attentive, fair, and go every extra mile to ensure due diligence. I am proud to have them on my resume and am happy for the experience of being part of such a busy, professional and fast paced team.”
    Mary Otte
  • “Ty secured settlements that were nothing less than outstanding for my clients/contacts that I have referred to him. The quick speed with which he achieved his results was a huge bonus to those clients.”
    Robert Kornitzer
  • “I have worked with Ty for years through the ABA Labor & Employment Law Section Employment Rights and Responsibilities Committee. Ty is a go-to source for exemplary presentations on trial practice. A tireless advocate for employee rights, Ty is an accomplished trial attorney and someone we can rely on and have repeatedly relied upon in mock trial presentations at our yearly conferences.”
    John Beasley
  • “Ty is a regular lecturer at continuing education programs for lawyers. This means that because of his abilities he is called upon to enhance the skills of lawyers who are already experienced. He is well regarded as a trial lawyer and as a provider of legal advice to clients. I find that his companionable persona makes it easier to accept and understand his thoughts and advice.”
    Arnie Pedowitz
  • “I have known Ty Hyderally for several years and can only describe him as an expert in all areas of Employment law. I have referred several people to him in connection with their legal concerns and on each occasion I have been met with very positive feedback from these individuals and businesses. I have personally sought his counsel relating to a variety of business strategy issues within my own Insurance practice. With his substantial experience and proven track record, I wholeheartedly recommend his services.”
    Matthew McGovern, Esq.
  • “Ty has represented me numerous times and I have always come out with positive results. He keeps you well informed at each step of the process and always makes you feel confident and secure. I highly recommend his services.”
    John Scardino Jr
  • “Ty and I worked at the same law firm Friedman Siegelbaum. I found him a pleasure to work with and an able and diligent attorney.”
    Joel Glucksman
  • “If ever someone needs an exceptional employment litigator, Ty is the first person that I think of. Not only is he incredibly intelligent, but he is able to craft litigation strategies to maximize his client's outcome. He is a relentless litigator, with great passion for his work. If you hire Ty, you will not be disappointed.”
    Noah B. Rosenfarb, CPA, ABV, PFS, CDFA
  • “Ty has been invaluable to me as a business owner with employee issues. His advice has been on point and redirected me in the midst of employee concerns. I would highly recommend him and his firm whenever you have employment concerns.”
    Philip Seaver
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    Jon Lamkin
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    Eric Reinstein
  • “I have been working with Ty for over 4 years. Ty is one person I would say pays attention to detail, works hard for his clients and gets the job done on time and with amazing results. I have referred clients to him and he has always given them star treatment was always up front and honest with them and they are so pleased with their outcomes and glad I made the introduction.”
    Carmen Bucco
  • “Ty was an adversary and never lost sight of his client's needs in seeking a resolution. I would not hesitate to recommend for plaintiffs in employment work. He is methodical and tenacious but fair and amenable to a just resolution.”
    Roger Jacobs
  • “My Husband and I hired Ty at a time when we thought all was lost. We had a different attorney on our case that just gave up on us. My husband contacted Ty and once he heard our case he immediately took action. Our case was settled within 3 months of Ty taking over. His experience and knowledge of employment laws are not only impressive but it is why he is very successful. Ty is also very compassionate about his clients and communicated with us every step of the way. I would recommend Ty Hyderally to anyone and everyone who is need of a great attorney. You too!! Will be satisfied.”
    Cynthia Ortiz
  • “I have referred clients to Ty for employment issues. They told me that Ty was knowledgeable, courteous and promptly handled their matters. I can easily recommend Ty for people with difficult employment cases.”
    Eileen Kohutis
  • “Working with Ty on various projects has been fantastic. He and his team are thorough and they understand how to get the job done correctly. When you have the chance to work with Ty you understand the meaning of not taking no for an answer. They work to understand clients needs and the resolve the issues at hand. I have seen firsthand what Ty and his associates bring to the table and I would recommend them to anyone needing assistance with employment law.”
    Darren Magarro
  • “I have worked with Ty Hyderally on the executive board of the New Jersey chapter of the National Employment Lawyers Association, and have discussed various employment matters with him. He is an excellent leader, always coming up with new ideas. Ty is truly an expert in employment law and I have found his analysis of both complex and simple matters to be dead on.”
    Leslie A. Farber
  • "Ty and I have worked together on a case getting ready for trial. We have also worked on trial advocacy presentations for the ABA. Ty is a very experienced litigator. He has great trial skills and connects well with his clients, the court and jury. He blends a sense of humor with knowledge of the law and facts. He is a very effective advocate.”
    Vanessa Kelly