Lessons on Mediation Confidentiality from New York State

A New York City Bar Association subcommittee recently issued a detailed report exploring and recommending measures to enhance mediation confidentiality protections.

The project, according to its introduction, was undertaken due to New York's absence of a statewide mediation confidentiality framework.

The subcommittee, composed of members from the association's ADR, Arbitration, International Commercial Disputes, and Litigation Committees, examines the nuances of mediation confidentiality in New York state, detailing the legal framework and practical implications of the confidentiality of documents and information in mediation.

The 18-page report, "Mediation Confidentiality in New York State: Overview of the Current Regulatory and Institutional Landscape with Recommendations," first outlines the sources of mediation confidentiality in New York state, describing both state and federal evidentiary rules governing mediation confidentiality. It explains the incidental confidentiality protections provided by existing evidentiary rules in state and federal courts, which prohibit the use of settlement discussions for certain purposes.

The report compares mediation confidentiality rules across New York's court systems. State courts lack a unified statutory or common law framework governing court-mandated mediations, nor has the state adopted the Uniform Mediation Act, which is enacted in 12 states and the District of Columbia, and which covers confidentiality as well as processes.  New York, instead, relies on local rules and optional confidentiality agreements between parties.

For instance, the New York County Supreme Court's Commercial Division ADR Rules  emphasize strict confidentiality, prohibiting disclosure of mediation-related documents and communications outside the mediation context.  See Rule 8(a), Confidentiality of Mediation and Neutral Evaluation.

Conversely, federal courts in New York, empowered by the Alternative Dispute Resolution Act of 1998, enforce more standardized confidentiality protections through local rules. These rules ensure that mediation communications remain confidential, barring specific court orders compelling disclosure.

Examining rules from major ADR providers, the NYC Bar Association report explains the different approaches to safeguarding mediator impartiality and confidentiality. Each provider establishes guidelines to protect confidential information exchanged during mediations.

For example, the American Arbitration Association's Commercial Mediation Procedures prohibit mediators from disclosing confidential information unless compelled by law or with parties' consent, while JAMS' Mediators Ethics Guidelines mandate secure storage and limited retention of mediation records. Similarly, CPR's Mediation Procedure enforces comprehensive confidentiality, barring disclosure of process details and settlement outcomes to anyone not involved.  [The International Institute for Conflict Prevention and Resolution—CPR owns CPR Dispute Resolution Services LLC, which provides mediation services.]

The report also noted that the AAA's International Centre for Dispute Resolution and the International Chamber of Commerce prioritize confidentiality, preventing disclosure of mediation communications unless legally required or agreed upon by all parties.

In exploring the enforcement of mediation confidentiality, the report cites judicial precedents where courts upheld the confidentiality of mediation discussions and agreements. It also notes exceptions to confidentiality, such as preventing illegal conduct, allegations of child abuse, or unethical behavior during mediations, demonstrating the balance between privacy rights and public interest.

The report concludes with recommendations for both mediators and mediation counsel, who are advised to assess the level of confidentiality that would be acceptable on a variety of mediation communications. The report also recommends that practitioners consider supplementing the confidentiality protections they may have with a separate confidentiality agreement. 

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The author, a CPR 2024 Summer intern, is a student at Harvard University Law School in Cambridge, Mass.

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