Mediation Confidentiality Rules in the State of New York

July 8, 2024

MEDIATION CONFIDENTIALITY RULES IN THE STATE OF NEW YORK

In June 2024, the New York City Bar released a memorandum addressing confidentiality in mediation within the State of New York. This memo, crafted by various committees, including the ADR and Litigation Committees, reviews the current state of confidentiality protections and offers recommendations. Unlike other states, New York lacks a comprehensive legal framework or specific “mediation privilege,” prompting the creation of this subcommittee. The article summarizes the memo’s key findings and suggests steps to enhance confidentiality in New York mediations.

While each court-mandated mediation in New York follows specific confidentiality rules, administered mediations outside court programs adhere to self-proclaimed regulations, and private mediations are governed by contractually established provisions. Mediators and participants should not assume all information shared during mediation is automatically confidential.

The NYSBA Memo provides a useful summary and overview of the various rules that may be applicable in considering the confidentiality of the mediation. For a detailed explanation of these confidentiality rules, please refer to the full memo, here.

Recommendations For Counsel Preparing For a Mediation in New York:

• For court-adjacent or administered mediations, use a confidentiality agreement to address gaps, such as third-party interactions.
• Examine existing dispute resolution agreements, forum confidentiality rules, and exceptions.
• Determine if a separate confidentiality agreement is necessary to cover additional elements not included in existing documents.
• Ensure the agreement addresses disclosures by parties, mediators, and attendees, and includes provisions for third parties and liability.
• For private mediations not covered by standard confidentiality rules, create a confidentiality agreement to ensure comprehensive protection.
• Be aware of the potential for discovery or subpoena of mediation communications and prepare strategies to address such risks

To read how CASTAYBERT PLLC can assist you with ADR matters, click here.