The Vulnerability of Trust: A Comprehensive Analysis of Mediation Confidentiality, Contractual Risk Management, and Compelled Disclosure in New York State and Federal Jurisdictions

Executive Summary

This article presents a comprehensive analysis of the legal risks associated with mediation confidentiality in New York State and Federal jurisdictions. It covers an important issue applicable to all mediations taking place in New York, including cases in state and federal court, and might even apply if some, but not all, of the parties participated in the mediation from New York, or were otherwise connected to New York. It argues that absolute confidentiality is often an illusion and provides a strategic framework for mediators to protect themselves against compelled disclosure.

Key Observations:

• A Fragmented Legal Framework: Unlike states that have adopted the Uniform Mediation Act (UMA), New York lacks a unified statutory privilege for mediation. Instead, it relies on a "patchwork system" of limited evidentiary rules, local court rules (such as Part 160), and private contracts. (See Section I.A: The Absent Standard)
• Confidentiality vs. Privilege: It is critical to distinguish between "confidentiality" and "privilege." Confidentiality refers to the duty to keep information private from third parties (e.g., neighbors or the Press) and is generally governed by contract. Privilege is a specific evidentiary rule that dictates what can be used in court and blocks discovery. In UMA jurisdictions (like Illinois), these concepts are treated as distinct provisions; however, New York contracts can generally only enforce privacy, not an evidentiary shield against valid subpoenas. (See Section I.B: Confidentiality vs. Privilege)
• The Threat of Compelled Disclosure: Because there is no absolute privilege, mediation communications are vulnerable to broad disclosure mandates under CPLR Section 3101 in state courts. In federal courts, confidentiality is a "qualified privilege" subject to the In re Teligent three-part balancing test, where a judge may order disclosure if the need for evidence outweighs the interest in privacy. (See Section I.C: Evidentiary Limitations vs. Privilege; Section II.B: The Second Circuit Standard)
• Common Misconceptions: Many practitioners mistakenly rely on settlement rules (like FRE 408) for protection, but these rules only limit admissibility for proving liability—they do not prevent discoverability for other purposes, such as proving bias or defending against malpractice claims. (See Section I.C: Evidentiary Limitations vs. Privilege)
• Risk Mitigation Strategy (The Defensive Toolkit): To navigate this uncertain landscape, mediators must move beyond assumptions of privilege and employ a robust, multi-layered contractual defense strategy. (See Section III: Proactive Risk Mitigation)
  • Comprehensive Confidentiality Agreements (CAs): Written agreements must explicitly define the scope of confidentiality and include mandatory witness waivers. (See Section III.A)
  • Indemnification and Hold Harmless Agreements (HHAs): Clauses designed to transfer the financial burden of legal defense to the party issuing the subpoena, covering attorneys' fees and the mediator’s hourly rate. (See Section III.B)
  • Specialized E&O Insurance: Professional liability coverage must explicitly include "Subpoena Assistance" to fund the defense against compelled testimony if contractual indemnification fails. (See Section III.C)

Abstract

This article addresses a critical issue applicable to all mediations conducted in New York—spanning private contractual disputes, state court-annexed programs, and federal cases—and may extend to proceedings where parties or significant contacts are connected to New York jurisdiction.

The confidentiality of mediation proceedings in New York State operates under a precarious and fragmented legal framework. Lacking a unified statutory privilege, New York jurisprudence relies on a patchwork system composed of limited evidentiary rules, localized court rules for mandated programs, and, critically, the enforceability of private contractual agreements. This systemic void creates significant risk exposure for mediators and participants, particularly when faced with compulsory legal process under the broad disclosure mandates of the Civil Practice Law and Rules (CPLR) Section 3101, or the qualified judicial standard established in federal courts.

This analysis postulates that assurances of absolute confidentiality in New York are generally illusory, as disclosure may be compelled in specific contexts, such as settlement agreement disputes, criminal investigations, or claims of professional misconduct. (1) To mitigate these inherent risks, mediators must move beyond general assumptions of privilege and employ a robust, multi-layered defense strategy. This strategy hinges upon three essential components: (1) comprehensive, clearly defined Confidentiality Agreements (CAs) and witness waivers; (2) mandatory Indemnification and Hold Harmless Agreements (HHAs) designed to transfer the financial burden of defending against subpoenas; and (3) adequate professional liability (Errors & Omissions, or E&O) insurance that includes specific coverage for subpoena defense costs.

Section I: The Lack of a Unified Privilege and the New York Patchwork System

A. The Absent Standard: Non-Adoption of the Uniform Mediation Act (UMA)

New York State has not adopted the Uniform Mediation Act (UMA), a pivotal piece of legislation enacted in twelve states and the District of Columbia that provides a unified statutory framework governing mediation confidentiality and process. (2) This legislative oversight means that the state lacks a comprehensive, codified mediation privilege analogous to the attorney-client privilege.

The absence of the UMA creates fundamental uncertainty. New York relies on local rules and optional confidentiality agreements, as there are neither common law nor general statutory confidentiality protections that govern most private or court-mandated mediations. (3) This institutional failure often leads to a dangerous practitioner misconception: many attorneys and new mediators mistakenly assume that New York affords the same level of confidentiality assurance as a legislated mediation privilege would provide, often teaching or giving assurances that nothing said during mediation can be repeated. (4) The legal reality is that participants in mediations governed by New York law are subject only to a limited array of evidentiary restrictions and a patchwork of rules that vary depending on the specific forum and administering institution.

B. Confidentiality vs. Privilege: A Critical Distinction

To fully grasp the risks inherent in New York mediation, practitioners must distinguish between two terms that are often used interchangeably but carry vastly different legal weight: confidentiality and privilege.

• Confidentiality is a broad duty to keep information private and not disclose it to third parties—such as neighbors, the press, or the public. In the mediation context, this duty typically arises from a private contract (the Confidentiality Agreement) or specific program rules. It essentially creates a "zone of privacy" that binds the participants to silence regarding what transpired during the session. However, a contractual promise of confidentiality is not absolute; it generally yields to a court order and does not inherently prevent a judge from compelling disclosure if legal necessity is shown.
• Privilege, by contrast, is a specific evidentiary rule. It is a statutory or common law right that empowers a person to refuse to disclose, and to prevent others from disclosing, confidential communications in a legal proceeding. A true privilege acts as a shield against the coercive power of the judicial system, blocking information from discovery and admissibility in court.

Because New York lacks a unified statutory mediation privilege, parties can agree to keep secrets from the public (confidentiality), but they cannot privately agree to withhold evidence from a court (privilege) if a subpoena is issued.

The Uniform Mediation Act (UMA) Approach: This distinction is sharply illustrated by the Uniform Mediation Act (UMA), which New York has not adopted. In UMA jurisdictions like Illinois, the statute explicitly separates these concepts. One provision creates a strong evidentiary privilege blocking disclosure in legal proceedings, while a separate provision establishes that mediation communications are confidential (prohibited from general disclosure) only to the extent agreed upon by the parties or required by other laws. By lacking this statutory architecture, New York leaves mediators with the "soft" protection of confidentiality contracts without the "hard" protection of evidentiary privilege.

C. Evidentiary Limitations vs. Privilege: The Insufficiency of Existing Rules

The protections often cited by practitioners—namely, general settlement discussion rules—provide only limited or incidental confidentiality and fall far short of establishing a true legal privilege.

Federal Rule of Evidence 408 and State Equivalents

Federal Rule of Evidence 408 (FRE 408) stipulates that evidence of conduct or statements made during settlement negotiations is generally inadmissible at trial to prove the validity or amount of a disputed claim. (5) This rule offers a measure of protection for mediation communications, but it is critically important to understand its limitations. FRE 408 pertains solely to admissibility for specific purposes, not to discoverability or admissibility for other purposes. The protection is not absolute; courts may admit this evidence for ancillary purposes, such as proving a witness’ bias or prejudice, negating a contention of undue delay, or demonstrating an effort to obstruct a criminal investigation or prosecution. (6)

Relying solely on FRE 408 is a fundamental legal miscalculation for protecting comprehensive confidentiality. The rule explicitly states that it "does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations." (7) A systemic gap is left by the lack of a true statutory privilege: communications and documents remain subject to subpoena and disclosure if the movant can demonstrate a need that falls outside the narrow scope of proving liability.

The CPLR Disclosure Standard

In New York State courts, the broad scope of disclosure under CPLR Section 3101 presents a persistent threat to mediation confidentiality. Section 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." (8) Furthermore, documents and information that are otherwise discoverable under the CPLR, Domestic Relations Law (DRL), or other law, are explicitly not shielded from disclosure simply because they were submitted or referred to in the mediation. (9) This "discoverable document carve-out" means that a party cannot immunize an otherwise unprotected document by placing it within the mediation context. The CPLR’s expansive discovery mandate restricts the effectiveness of confidentiality agreements to the communications themselves, but not the factual or documentary underpinnings of the dispute.

D. The State Court Patchwork: Rule-Based Protection and Its Exceptions

New York's approach to mediation confidentiality is fundamentally bifurcated. The legal resilience of a mediation against subpoena depends critically on whether it is a private contractual arrangement or a structured, court-annexed program.

Court-Annexed Rules and Part 160

Many court-mandated mediations operate under specific local court rules that impose strict confidentiality requirements. (10) These rules apply solely to mediations held under the court's auspices. (11) Most importantly, New York court rules provide a powerful, rule-based quasi-privilege for neutrals working in court-referred ADR programs. The Standards for Conduct for Mediators in Court-Referred ADR (22 NYCRR Part 160) unequivocally state that mediators and neutral evaluators, along with their notes or other work product, shall not be subject to compelled testimony or discovery. (12) This provision acts as a structural defense, providing roster mediators with much greater resilience against subpoena than mediators engaged in purely private, contractual mediations.

Mandatory Disclosure Exceptions

Even where strict rule-based confidentiality exists, it is subject to mandatory public policy exceptions. These exceptions demonstrate the balance courts strike between privacy rights and public safety or professional accountability:

• Child Abuse or Serious Harm: Mediators are explicitly not required to adhere to confidentiality restrictions when credible information concerning child abuse or neglect, or threatened serious harm to anyone, comes to their attention. (13)
• Professional Misconduct or Malpractice: Disclosure is permitted to the extent necessary to pursue or defend against a claim or complaint of professional misconduct or malpractice filed against a mediating party, representative, or the mediator based on conduct occurring during the mediation. (14)
• Fee Collection: A mediator may disclose the services rendered to collect an authorized, unpaid fee. (15)

The essential difference in New York practice is that the structural support provided by Part 160 offers a proactive shield, while private mediations must rely on the retrospective enforcement of a contract against the CPLR's broad discovery standard.

E. AAA’s Administrative Forum Rules and Commercial Mediation Procedures

The American Arbitration Association (AAA) governs various dispute resolution processes, including arbitration and mediation, through comprehensive Administrative Forum Rules (like the Commercial Arbitration Rules and Mediation Procedures). These rules backfill the void in statutory guidance and ensure procedural fairness, neutrality, and efficiency. They cover everything from the initiation of a case, selection of neutrals (arbitrators/mediators), evidence exchange, and conduct of hearings/sessions, to the final award or settlement. Specifically, the rules govern the administrative relationship between the parties and the AAA.

Mediation Under AAA's Mediation Procedures

Mediation administered under the AAA's procedures, such as those referenced below, is characterized by two key features: Confidentiality (Procedure M-10) and Exclusion of Liability (Procedure M-13). (16)

• M-10. Confidentiality: Subject to applicable law or the parties’ agreement, confidential information disclosed to a mediator by the parties or by other participants (witnesses) in the course of the mediation shall not be divulged by the mediator. The mediator shall maintain the confidentiality of all information obtained in the mediation, and all records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding the following, unless agreed to by the parties or required by applicable law: (i) views expressed or suggestions made by a party or other participant with respect to a possible settlement of the dispute; (ii) admissions made by a party or other participant in the course of the mediation proceedings; (iii) proposals made or views expressed by the mediator; or (iv) the fact that a party had or had not indicated willingness to accept a proposal for settlement made by the mediator. (17)
• The process under M-10 is highly confidential. The mediator must not divulge confidential information or records received during the process, and they cannot be compelled to testify in an adversary or judicial proceeding. Parties must also maintain confidentiality and are generally prohibited from using in court/arbitration settlement views, admissions, proposals, or a party's willingness to accept a settlement unless legally required or agreed upon.
• M-13. Exclusion of Liability: Neither the AAA nor any mediator is a necessary party in judicial proceedings relating to the mediation. Neither the AAA nor any mediator shall be liable to any party for any error, act, or omission in connection with any mediation conducted under these procedures. (18) Thus M-13 insulates AAA and the mediator from liability for any "error, act or omission" connected to the mediation. They are also not necessary parties in related judicial proceedings.

A sample mediation clause drafted in a contract providing for mediation would read something like this:

Dispute Resolution - Mediation

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall first be submitted to mandatory mediation administered by the American Arbitration Association (AAA) in accordance with its then-current Commercial Mediation Procedures. The parties agree to participate in the mediation in good faith for a period of at least sixty (60) days. The mediation process shall be treated as strictly confidential by all participants. In accordance with AAA Mediation Procedure M-10, no statements, views, admissions, or proposals made during the mediation shall be admissible as evidence in any subsequent arbitration or judicial proceeding, unless otherwise required by law or agreed upon in writing by all parties. The parties further agree that, should mediation fail to resolve the dispute, the parties shall then proceed to [Insert next step, e.g., binding arbitration, litigation, etc.].

Chart of Existing Confidentiality Methods

Section II: Federal Court Confidentiality and the Doctrine of Judicial Need

A. Federal Authority and Local Rules

Federal courts in New York, including the U.S. District Courts for the Southern District of New York (SDNY) and the Eastern District of New York (EDNY), enforce confidentiality primarily through local rules as empowered by the federal Alternative Dispute Resolution Act of 1998. (19) These local rules ensure that mediation communications remain confidential unless specific court orders compel disclosure. (20) Federal judges frequently compel parties into mediation, even without their consent, relying on their inherent power to control their docket and manage cases efficiently, consistent with Federal Rule of Civil Procedure 16(a)(5). (21)

B. The Second Circuit Standard: The In re Teligent Test (2d Cir. 2011)

In the absence of a federal mediation privilege statute, the Second Circuit Court of Appeals established the governing qualified privilege standard for compelling disclosure in In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011). (22) This ruling is the controlling authority defining the limits of mediation confidentiality in New York federal courts.

The Three-Part Balancing Test

The Teligent court held that a party seeking disclosure of confidential mediation material must satisfy a strict, three-part balancing test. The moving party must demonstrate that:

1. There is a special need for the confidential material;
2. Resulting unfairness would occur from a lack of discovery; and
3. The need for the evidence substantially outweighs the interest in maintaining confidentiality. (23)

The Teligent court emphasized the policy rationale behind confidentiality, cautioning that "[w]ere courts to cavalierly set aside confidentiality restrictions on disclosure of communications made in the context of mediation, parties might be less frank and forthcoming during the mediation process or might even limit their use of mediation altogether." (24)

Facts of the Case: Following the bankruptcy of Teligent, Inc., the former counsel (K&L Gates) of a prior CEO (Mandl) was sued for malpractice regarding a settlement agreement (reached after a mediation) that required Mandl to sue K&L Gates and share the proceeds. K&L Gates, in defending the malpractice claim, sought discovery of the communications that occurred during the bankruptcy court mediation. The mediation was subject to confidentiality protective orders.

Issue: Did the district court err in denying the motion by K&L Gates to lift the protective orders and compel disclosure of the confidential mediation communications when the information was sought for use in a collateral malpractice action to challenge the validity of the underlying settlement?

The Implications of Qualified Privilege

The Teligent standard establishes a qualified judicial privilege, which is inherently different from an absolute privilege. Any judicial balancing test, by its nature, introduces an element of uncertainty. (25) It dictates that confidentiality can and will be overcome if the judicial need (for example, to uphold due process rights, prevent a miscarriage of justice, or enforce a valid contract) is deemed compelling enough to substantially outweigh the societal and private interest in protecting the process. This means that attorneys and mediators operating within the Second Circuit jurisdiction cannot guarantee that communications will never be disclosed. (26)

Section III: Proactive Risk Mitigation: Contractual Protections for Mediators

Given the systemic lack of unified statutory privilege in New York, particularly for non-court-annexed proceedings, the onus falls on mediators and parties to establish robust contractual safeguards. These agreements serve as the primary means of safeguarding privacy and transferring financial risk.

A. The Essential Confidentiality Agreement (CA)

The Confidentiality Agreement is generally enforceable under New York contract law, providing the foundational legal defense for privacy. (27) Mediators have an affirmative obligation to promote understanding among the parties regarding the extent of confidentiality they must maintain. (28)

A comprehensive CA must contain several critical provisions to withstand future legal challenge:

• Scope and Exclusion: The agreement must explicitly define what information is covered, including statements made and documents produced within the context of the mediation. Crucially, the CA should also reiterate that documents or information otherwise discoverable are not immunized by inclusion in the mediation. (29)
• Mediator Witness Waiver: The agreement must include an explicit, mandatory clause stating that the parties agree they will not call the Mediator as a witness for any purpose whatsoever. (30) This contractual waiver strengthens the mediator's legal position when facing a subpoena.
• Work Product and Note Preservation: To reduce the universe of discoverable material, the agreement should clearly state that the parties understand and agree that the Mediator has no obligation to create, maintain, or preserve any notes, memoranda, or work product related to the mediation. (31)
• Exceptions for Enforcement: The CA should contemplate a limited exception allowing the disclosure of confidential information that is required to be disclosed by law or necessary for the enforcement of a settlement agreement reached in the mediation. (32)

B. Indemnification and Hold Harmless Agreements (HHAs): Transferring Financial Risk

Contractual risk allocation is paramount, especially regarding the costs associated with defending confidentiality. An indemnification provision is a contractual remedy designed to redress a party’s financial loss resulting from a claim or event, serving as a critical risk allocation mechanism. (33) For mediators, the Hold Harmless Agreement (HHA) shifts the financial burden of a subpoena or compelled testimony motion onto the initiating party.

Enforceability and Scope of the HHA

New York courts are generally inclined to abide by the terms of a voluntary waiver of discoverable materials or contractual agreements absent mistake, fraud, or collusion. (34) Therefore, a well-drafted HHA provides a strong basis for enforcing cost recovery. The HHA must be comprehensive and explicit, mandating that if any party subpoenas or requests the mediator to appear or produce records, that party must:

• Fully indemnify and hold the Mediator harmless. (35)
• Cover all resulting costs, including, but not limited to, attorneys' fees and the customary hourly rate of the Mediator incurred in connection with responding to the subpoena. (36)
• If a third party seeks to compel disclosure, all parties agree to jointly indemnify the mediator for defense costs. (37)

The incorporation of the HHA serves as the most powerful practical deterrent against frivolous or speculative attempts to compel mediator testimony, transforming the mediator from a passive target into an actively protected, expensive opponent. (38)

C. The Critical Role of Professional Liability Insurance (E&O)

Professional liability insurance, or Errors & Omissions (E&O) insurance, is a critical layer of financial protection for mediators. It shields professionals against claims of negligence, misrepresentation, bias, or breach of confidentiality. (42) E&O coverage is indispensable because it functions as a necessary financial backstop if the contractual protection offered by the HHA fails—for instance, if the indemnifying party becomes insolvent or the court declines to enforce the contractual indemnity clause. (43)

Crucially, E&O policies typically include dedicated defense coverage elements specifically relevant to confidentiality challenges. Many policies offer "Subpoena Assistance coverage," which covers the costs incurred in responding to demands for documents or testimony. (44) Practitioners should meticulously examine policy terms to understand whether defense costs erode the policy limits and ensure sufficient policy limits are obtained to offset potential erosion. (45)

Defensive Toolkit Summary

Section IV: Compelled Disclosure: Analyzing Real Breaches of Confidentiality (Case Law Review)

A. Federal Challenges and Malpractice Claims

In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011)

As established, Teligent defines the high-bar qualified privilege in the Second Circuit. (46) Although the court in this case ultimately affirmed the denial of a motion to compel disclosure, the importance of the ruling is not the outcome but the creation of the mechanism by which confidentiality can be overcome. The case confirms that the protection is not absolute and that the interests of judicial efficiency and fairness can, under appropriate circumstances, override the interest in mediation privacy. (47)

McKissock & Hoffman, P.C. v. Waldron, Civil Action No. 10-7108 [USDC, ED Pa.], (Aug. 4, 2011)

This federal district court case illustrates a principal risk factor for New York mediators: being dragged into a legal malpractice suit against one of the parties' counsel. A law firm, accused of malpractice, filed suit to compel the federal mediator to testify about the settlement negotiations. (48) The federal district court dismissed the suit, shielding the mediator based on confidentiality principles and sovereign immunity. (49) This outcome demonstrates the strong inclination of federal courts to protect their court-appointed neutrals. However, the attempt itself highlights that even a successfully defended mediator incurs significant legal defense costs, regardless of the final ruling on confidentiality, underscoring the necessity of having HHAs and E&O insurance in place. (50)

B. State Cases: Constitutional Rights vs. Statutory Privilege

People v. Snyder (N.Y. Sup. Ct. 1987)

In a rare statutory success, a murder defendant raising a self-defense claim subpoenaed records from a Community Dispute Resolution Center (CDRC). (51) The New York Supreme Court quashed the subpoena, relying on the clear legislative intention to guarantee the confidentiality of all such records and communications contained within the specific Dispute Resolution Act. (52) This case provides rare evidence that where New York lawmakers have provided a clear, specific statutory privilege, it can be enforced successfully, even against challenges based on a defendant's constitutional right to present a defense.

State v. Williams (N.J. 2005)

The New Jersey Supreme Court case State v. Williams provides a powerful, modern counterpoint to New York's fragmented law, addressing the conflict between a statutory mediation privilege and a criminal defendant’s constitutional right to a complete defense. (53) In Williams, the defendant sought to compel a court-appointed mediator to testify about statements made by a witness during mediation that allegedly supported the defendant's self-defense claim. (54) The New Jersey Supreme Court ultimately upheld the mediator’s privilege, finding that the defendant failed to meet the high burden of showing that the need for the evidence substantially outweighed the strong public interest in maintaining the integrity and confidentiality of the mediation process. (55) The court's willingness to subordinate the constitutional right of confrontation to the statutory mediation privilege in a criminal case highlights the resilience that a unified, codified privilege offers, a protection largely absent for private New York mediations.

C. Disclosure Under Public Policy Exceptions (Crime, Fraud, Duress)

Crime-Fraud Exception

The Crime-Fraud exception applies to otherwise privileged communications that are made in furtherance of crime or fraud. (56) The Second Circuit has affirmed orders compelling the disclosure of attorney-client communications when there is probable cause to believe that the services were used to circumvent internal controls or perpetrate a crime. (57) This judicial authority creates a clear pathway to pierce mediation confidentiality when communications, documents, or discussions suggest that the process itself was utilized to further illegal conduct.

Settlement Enforcement and Duress

New York courts endeavor to enforce mediated settlement agreements. (58) However, when a mediated agreement is challenged on grounds of unconscionability, fraud, or duress—claims that are often raised against the validity of the settlement contract—judicial scrutiny of the mediation process becomes necessary. (59) While a court may uphold the agreement, the inquiry itself often requires hearing evidence or testimony related to the communications that occurred during the negotiation process, potentially overriding confidentiality to ensure due process and fairness. (60)

Case Law Summary Table

Section V: Conclusion and Best Practice Recommendations

A. Synthesis of the New York Risk Profile

The analysis confirms that mediation confidentiality in New York State and its federal districts operates not as a unified shield, but as a mosaic of qualified protections, contractual defenses, and necessary public policy exceptions. The vulnerability stems fundamentally from the non-adoption of the UMA and the inherent tension between the policy goal of promoting frank communication and the judicial mandate for full discovery under CPLR Sec. 3101. The inevitable consequence of this fragmented environment is that mediators face a persistent, non-trivial risk of incurring significant legal costs in defending against motions to compel disclosure, even if the motion is ultimately denied.

B. The Mediator’s Defensive Toolkit Checklist

To navigate this complex risk environment, mediators must adopt a defensive toolkit that proactively addresses both the legal and financial threats associated with compelled disclosure.

1. Written Confidentiality and Witness Waiver: Mediators must utilize comprehensive, written agreements. These agreements must explicitly define the scope of confidentiality, provide the necessary exceptions, and, most critically, include mandatory clauses in which all parties waive the right to subpoena or call the mediator as a witness for any purpose whatsoever. (67)
2. Indemnification and Hold Harmless: The contractual obligation to indemnify the mediator against legal costs is the single most effective deterrent against unwarranted subpoenas. Mediators must mandate that all participating parties fully indemnify them for all legal expenses and time (at their customary professional hourly rate) spent responding to any judicial or administrative demand for testimony, notes, or documents. (68)
3. Note Destruction/Retention Policy: Mediators should adopt a policy of minimal notetaking and confirm in the confidentiality agreement that they have no obligation to create, maintain, or preserve any notes, memoranda, or work product. (69) Reducing the volume of potential discovery material effectively minimizes the discoverable universe and strengthens the defense against a subpoena seeking records.
4. E&O Insurance with Subpoena Coverage: Professional liability insurance is a crucial component of confidentiality risk management. Mediators must secure E&O policies that explicitly include coverage for defense costs related to responding to subpoenas and compulsory legal process. (70) This insurance provides the necessary financial protection should the indemnifying party in the HHA become incapable of meeting its obligations or when facing a protracted legal battle to defend the principle of confidentiality. (71)

Endnotes

(1) Cassandra Porsch & John S. Siffert, Why the New York City Bar Association Report on the State of Mediation Confidentiality in New York Is Required Reading, 17 N.Y. Disp. Resol. Law. No. 2, at 21–22 (2024) online at https://www.lswlaw.com/wp-content/uploads/2024/09/2024.09-Siffert-NYSBA-Mediation-Confidentiality.pdf. This article explains that the confidentiality protections for mediation in New York are highly fragmented and depend on the forum. It also notes the absence of a statewide framework and reliance on court and administered rules. These facts directly support the conclusion that absolute confidentiality is illusory due to the patchwork legal system.

(2) Id.

(3) Porsch & Siffert, supra note 1, at 22 (discussing the "dangerous practitioner misconception" that New York has a privilege).

(4) Id.

(5) FED. R. EVID. 408(a); see also Legal Info. Inst., Rule 408. Compromise Offers and Negotiations, Cornell L. Sch., https://www.law.cornell.edu/rules/fre/rule_408 (last visited Oct. 28, 2025).

(6) FED. R. EVID. 408(b); see also Clear Counsel Law Grp., Confidentiality vs. Settlement Negotiations (Oct. 28, 2025), https://www.clearcounsel.com/confidentiality-vs-confidential-settlement-negotiations-to-further-your-case/.

(7) FED. R. EVID. 408.

(8) N.Y. C.P.L.R. 3101(a) (McKinney 2024); see also Cynthia Feathers, Discovery in New York Civil Practice, 45 N.Y. St. B.J. No. 4, at 32, 34 (2023) (noting that the "material and necessary" standard is interpreted liberally to require disclosure of any facts that assist trial preparation); N.Y. C.P.L.R. 3101 (Westlaw), https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-3101/ (last visited Oct. 28, 2025).

(9) See N.Y. Sup. Ct., Gen. Civ. Mediation Rules § 3(B)(2) (N.Y. Cnty. 2024), https://ww2.nycourts.gov/courts/1jd/supctmanh/ADR-General-Civil.shtml (stating documents otherwise discoverable are not shielded); N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d) (2024) (containing the discoverable document carve-out for court-referred ADR).

(10) Porsch & Siffert, supra note 1, at 22.

(11) Id.

(12) N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d)(3) (2024); see also N.Y. Unified Court Sys., Part 160. Alternative Dispute Resolution in the Trial Courts, NYCOURTS.GOV, https://ww2.nycourts.gov/rules/chiefadmin/160.shtml (last visited Oct. 28, 2025).

(13) N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d)(3) (2024); see also N.Y. Sup. Ct., Gen. Civ. Mediation Rules § 8 (N.Y. Cnty. 2024).

(14) N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d)(3)(i) (2024).

(15) N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d)(3)(ii) (2024).

(16) See AAA Commercial Mediation Procedures and Costs, Available online at http://www.adr.org/commercial; (Procedures Amended and Effective September 1, 2022 Costs Amended and Effective January 1, 2025); see also https://www.adr.org/media/kirdmbcu/2025-commercial-mediation-procedures-fee-schedule.pdf (accessed 11/14/2025).

(17) Id.

(18) Id.

(19) Porsch & Siffert, supra note 1, at 22; N.Y. Sup. Ct., Gen. Civ. Mediation Rules § 3(B)(2) (N.Y. Cnty. 2024).

(20) N.Y. COMP. CODES R. & REGS. tit. 22, § 160.3(d)(3) (2024); see also N.Y.C. Bar Ass'n, supra note 1, at 8 (discussing the quasi-privilege effect of Part 160); Queens Sup. Ct., Comm. Div., Mediation Rules R. 4(b) (2023), available at https://www.nycourts.gov/legacypdfs/courts/11jd/supreme/civilterm/adr/adr_comm_rules.pdf.

(21) In re Teligent, Inc., 640 F.3d 53, 57 (2d Cir. 2011).

(22) See 28 U.S.C. § 652(d) (2018) (mandating confidentiality for ADR communications under the ADR Act); see also In re Teligent, Inc., 640 F.3d at 57.

(23) See In re Teligent, Inc., 640 F.3d at 57.

(24) See Gibbons P.C., So, You Have Been Compelled to Mediation in SDNY and EDNY: What Next? (Mar. 15, 2024), https://www.gibbonslaw.com/resources/publications/so-you-have-been-compelled-to-mediation-in-sdny-and-edny-what-next/.

(25) In re Teligent, Inc., 640 F.3d at 57.

(26) Id. at 58.

(27) Id.

(28) See David F. Johnson, An Absolute or Qualified Privilege for Mediation Communications: Teligent and Its Aftermath, 14 N.Y. St. B.J. No. 2, at 36, 38 (2012) (analyzing the uncertainty created by the balancing test and discussing Teligent and Dandong).

(29) In re Teligent, Inc., 640 F.3d at 58.

(30) Russell M. Greenberg, The Illusion and Reality of Mediation Confidentiality, 74 St. John's U. L. Rev. 89, 92–93 (2000) (explaining that confidentiality rests primarily on contract law and is generally enforceable).

(31) Id. at 100.

(32) N.Y.C. Bar Ass'n, Confidentiality Provisions to be Considered for Inclusion in a Mediator Agreement § 1(b) (N.Y.C. Bar Rep. 2024), https://www.nycbar.org/reports/confidentiality-provisions-to-be-considered-for-inclusion-in-a-mediator-agreement/ (last visited Oct. 28, 2025).

(33) Id. § 2.

(34) Id. § 4.

(35) Id. § 1(c).

(36) Morgan Lewis, What Does “Defend, Indemnify and Hold Harmless” Mean? (Jan. 16, 2024), https://www.akingump.com/en/insights/alerts/what-does-defend-indemnify-and-hold-harmless-mean.html.

(37) See N.Y. Sup. Ct., Comm. Div. Blog, To Disclose or Not to Disclose: The Importance of Putting Everything in Writing (Aug. 24, 2023), https://www.nycomdiv.com/2023/08/to-disclose-or-not-to-disclose-the-importance-of-putting-everything-in-writing/ (finding courts will abide by voluntary waivers of discoverable material absent mistake, fraud, or collusion).

(38) N.Y.C. Bar Ass'n, supra note 28, § 3(b).

(39) Id. § 3(b); Queens Sup. Ct., Comm. Div., Mediation Rules R. 4(b) (2023).

(40) N.Y.C. Bar Ass'n, supra note 28, § 3(c).

(41) Id. at 7.

(42) N.Y. Sup. Ct., Gen. Civ. Mediation Rules § 3(B)(2) (N.Y. Cnty. 2024); N.Y.C. Bar Ass'n, supra note 28, § 2.

(43) Queens Sup. Ct., Comm. Div., Mediation Rules R. 4(b) (2023); N.Y.C. Bar Ass'n, supra note 28, § 3(b).

(44) NLADA Mutual, What We Cover (2025), https://www.nlada.org/nlada-mutual/what-we-cover (listing Subpoena Assistance coverage); Draftrs, Mediators and Arbitrators Insurance (2025), https://www.draftrs.com/LawyersSummary (discussing E&O for mediators); see also Pearl Ins., Professional Liability (E&O) Insurance Coverage (2025), https://pearlinsurance.com/professional-liability-insurance/ (listing Subpoena Assistance coverage for professionals).

(45) NLADA Mutual, supra note 40; Draftrs, supra note 40.

(46) NLADA Mutual, supra note 40; see also Pearl Ins., supra note 40.

(47) Draftrs, supra note 40 (discussing defense coverage and legal defense costs).

(48) State Bar of N.M. Comm. on Lawyers' Prof'l Liab. & Ins., Lawyer Liability Insurance 15 (Feb. 27, 2025), https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/LPL/NMLLawyersProfLiability.pdf?ver=alVDvL89k374Vxdo2a5zvQ%3D%3D (discussing erosion of policy limits).

(49) In re Teligent, Inc., 640 F.3d at 57.

(50) Id. at 58; see also Johnson, supra note 24, at 38 (analyzing the high-hurdle standard set by Teligent).

(51) McKissock & Hoffman, P.C. v. Waldron, No. 10-3367, 2011 WL 2470726, at *1 (E.D. Pa. June 22, 2011).

(52) McKissock & Hoffman, P.C., 2011 WL 2470726, at *4.

(53) See David C. Vanarelli, Federal Court Shields Mediator from Being Compelled to Testify, Vanarelli L. Firm (Oct. 28, 2025), https://www.vanarellilaw.com/library/federal-court-shields-mediator-from-being-compelled-to-testify.cfm (noting the significance of the case for mediator protection and malpractice risk).

(54) People v. Snyder, 129 Misc. 2d 280, 281, 510 N.Y.S.2d 452, 453 (Sup. Ct. 1987).

(55) Snyder, 129 Misc. 2d at 283–84, 510 N.Y.S.2d at 455; see also Robert J. Smith, To Privilege or Not to Privilege? The Status of Mediator Confidentiality in New York, 16 N.Y. Disp. Resol. Law. No. 1, at 24, 26 (2023) (discussing the strength of the CDRC privilege statute).

(56) State v. Williams, 184 N.J. 432, 439, 877 A.2d 1258, 1262 (2005).

(57) Id. at 439, 877 A.2d at 1262.

(58) Id. at 451, 877 A.2d at 1267–68; see also Magley, supra note 24, at 6 (analyzing the Williams court's application of the UMA standard to privilege).

(59) N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Ethics Op. 837 (2010) (discussing the crime-fraud exception in the context of professional ethics).

(60) See In re Grand Jury Subpoenas Dated Mar. 19, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (setting out the probable cause standard for the crime-fraud exception in the Second Circuit); BCLP, Crime-Fraud Exception Destroys Privilege for Communications Between Former CEO of Public Company and His Outside Lawyer (Feb. 11, 2025), https://www.bclplaw.com/en-US/events-insights-news/crime-fraud-exception-destroys-privilege-for-communications-between-former-ceo-of-public-company-and-his-outside-lawyer.html.

(61) See Edna Sussman, Enforcing Mediated Settlement Agreements, ABA Section of Disp. Resol. (Oct. 28, 2025), https://fedarb.com/professionals/adr-neutral-edna-sussman/ (source for a relevant legal publication by the author).

(62) Addesa v. Addesa, 392 N.J. Super. 58, 69, 919 A.2d 885, 894 (App. Div. 2007) (discussing the need for a plenary hearing on unconscionability grounds).

(63) Id. at 70, 919 A.2d at 895.

(64) In re Teligent, Inc., 640 F.3d at 58.

(65) Id. at 57; Johnson, supra note 24, at 38.

(66) Smith, supra note 51, at 26.

(67) State v. Williams, 184 N.J. at 451, 877 A.2d at 1267–68; Magley, supra note 24, at 6.

(68) McKissock & Hoffman, P.C., 2011 WL 2470726, at *3–4.

(69) Vanarelli, supra note 49.

(70) Greenberg, supra note 26, at 93; N.Y.C. Bar Ass'n, supra note 28, § 2.

(71) N.Y.C. Bar Ass'n, supra note 28, § 3(b); Queens Sup. Ct., Comm. Div., Mediation Rules R. 4(b) (2023).