Committee Reports

Mediation Confidentiality In New York State

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REPORT

Mediation Confidentiality In New York State: Overview of the Current Regulatory and Institutional Landscape with Recommendations

Unlike a number of other states, New York has not adopted a statewide legal framework governing the confidentiality of information and documents shared during a mediation or legislated a specific “mediation privilege.” Given this fact, several members of the Alternative Dispute Resolution (ADR) Committee, the Arbitration Committee, the International Commercial Disputes Committee, and the Litigation Committee of the New York City Bar Association formed a subcommittee to examine the scope of the confidentiality protections for mediations conducted in New York and determine what, if any, measures should be taken by mediators and legal practitioners to bolster these protections.  The subcommittee has identified these key takeaways, as set forth in more detail in the report that follows:

  • Mediators and mediation participants should not assume that all information shared during a mediation is de facto confidential.
  • Evidentiary rules applicable in state and federal courts in New York which prohibit the use of settlement discussions for certain purposes provide some measure of incidental confidentiality protection for certain mediation-related communications.
  • Each of the mediation programs offered through New York State Courts and federal courts in New York has rules requiring confidentiality of the mediation process for the mediation participants.
  • Privately administered mediation forums (e.g., AAA, JAMS) also have rules requiring confidentiality of the mediation process to which participating parties agree to be bound.
  • Mediations that are not part of a court program or conducted through an administered entity such as AAA or JAMS—that is, truly private mediations—are not governed by any general confidentiality rule and/or standard mediation agreement covering the participants. Thus, mediators and legal practitioners participating in these types of mediations will want to consider entering into a confidentiality agreement at the outset.
  • Mediators and legal practitioners participating in court-adjacent or administered mediations may still consider using a confidentiality agreement to supplement confidentiality protections, for example, to cover third parties coming into contact with mediation communications, who are not specifically contemplated by most of these rules.
  • Regardless of the existence of a confidentiality agreement governing a mediation, New York courts have allowed the discovery of certain mediation communications in exceptional and narrow circumstances. Also, persons with no connection to the mediation, including government agencies and officials, and litigants in other cases, may have legal rights to issue a compulsory process such as a subpoena to those who participated in the mediation to learn what happened. Parties to a mediation need to be aware of this risk, although the law governing the parties’ rights to resist and the likelihood that a court would enforce the process is beyond the scope of this report.[1]

This report highlights the fragmented nature of New York’s legal landscape governing mediation confidentiality. We also recommend steps participants can take to strengthen the confidentiality of information and documents that are shared during mediations that are conducted in New York State.

I. INTRODUCTION

New York State does not have a statewide legal framework within which mediations must be conducted.[2] Nor has it adopted the Uniform Mediation Act[3] which establishes mediation processes as well as a confidentiality privilege for mediation constituents.[4]

In order to identify the rules that govern mediation confidentiality in New York, one has to resort to varying sources.  Federal and state evidence rules that govern settlement discussions have been interpreted by courts to apply to mediations.  In court-mandated mediations, each court has also adopted its own rules that provide confidentiality protections.  Administered mediations conducted outside court programs are subject to the rules of administering institutions.  Private mediations are governed by contractually agreed-upon mediation provisions which may or may not incorporate rules from one or more of the institutions that administer mediations. Generally, in all circumstances, the parties also can contractually agree to follow specific confidentiality protocols suited to their matter.

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Footnotes

[1] The participants in the mediation may specify by contractual agreement how a participant who is served with a subpoena should react (for example, by giving notice to other participants; objecting; or moving to quash), subject always to any mandatory legal constraints on their action.

[2] In general, mediations in New York State fall in one of three broad categories:  (1) Community Dispute Resolution Center (“CDRC”) mediations, which operate through a program funded by the New York State Unified Court System and are governed by a New York statute—McKinney’s Judiciary Law § 849—and provide free or low-cost mediation services to New York residents who may or may not have an active court case; (2) court mediations, which operate through court programs and are governed by local court rules; and (3) private mediations, which operate either in an unadministered setting or through private providers, in which case they are subject to the provider rules.  The statutory scheme establishing CDRCs offers a robust confidentiality protection.  See McKinney’s Judiciary Law § 849-b(6).  But as these mediations do not typically involve the types of disputes addressed by this joint subcommittee, we do not include this analysis in this report.

[3] Uniform Law Commission, Uniform Mediation Act (amended 2003).  May be accessed at https://www.uniformlaws.org/committees/community-home/librarydocuments?communitykey=45565a5f-0c57-4bba-bbab-fc7de9a59110&LibraryFolderKey=&DefaultView= (All websites last accessed on June 11, 2024).

[4] A number of states, including neighboring New Jersey, have adopted the Uniform Mediation Act.  The adoption of this comprehensive framework by other states raises the question whether parties should consider the existence of any statewide framework in choosing the venue for their mediation, and whether it might be worth mediating in a state other than New York on such a basis.  However, even if a mediation occurs in a state other than New York, a choice of law analysis would have to be conducted by a New York tribunal before determining whether the law of the state where the mediation was conducted would apply to a controversy in that tribunal.  See, e.g., Oasis Med., Inc. v. I-Med Pharma USA Inc., 2023 U.S. Dist. LEXIS 173867, *26-29 (S.D.N.Y. Sept. 1, 2023) (noting that New York does not have a mediation privilege and conducting an extensive choice of law analysis to determine whether the New Jersey mediation privilege would apply to information related to a mediation conducted in New Jersey sought by subpoena in the New York action).  The state of the jurisprudence on the choice of law applicable to the mediation privilege is beyond the scope of this report.