As Mr. Weil observes, confidentiality is a critical element in a mediation. Confidentiality allows participants to speak frankly without fear that their statements and admissions will be used against them if the case goes to trial. However, mediation may not always be confidential in New York and prudent measures may be appropriate in certain instances to assure the confidentiality of a mediation proceeding. There is no state statute that assures confidentiality.
Local court rules, in both state and federal courts, offer varying and often different levels of confidentiality protection. Similarly, private mediation agreements vary in their terms. the court decisions that have addressed mediation confidentiality do not provide clear guidance. What exactly is subject to confidentiality? What can or cannot be used outside of the mediation? In the EDNY and the SDNY, there are broad guidelines concerning what must remain confidential and litigants in these courts can be assured that the confidentiality of mediation proceedings will be protected. But many mediations are not court-annexed proceedings.
What about proving and enforcing mediated settlement agreements? A well-drafted settlement agreement provides that settlement agreements are admissible in evidence as an exception to confidentiality in order to enforce them, but may a party use confidential information to prove the existence of an oral agreement? Do rules concerning mediation confidentiality permit the court to admit evidence of what occurred during the mediation if one party claims to have settled as a result of fraud, duress or mistake during the mediation?
In summary, there is no iron clad guarantee. The practitioner should not take confidentiality for granted, but review the rules of the court or administrative organization (eg. JAMS, CPR, NAM) in advance of a mediation to evaluate how comprehensive those rules are.
As a practical matter, Mr. Weil recommends several ways to protect confidentiality: (1) disclosing confidential information to the mediator only in private caucuses; (2) labeling documents “Confidential Prepared for Use in Mediation Only”; and (3) incorporating the elements of confidentiality in settlement agreements, but with an exception for enforcement. Even in court-annexed mediation, there is no reason why the parties cannot enter into a private mediation agreement if the parties believe that the court’s rules do not afford adequate protection.