Can Both Parties Waive Mediation Confidentiality?

Procedural posture and result

Review of an order requiring a nonparty mediator to provide mediation-related disclosure in post-divorce litigation. The New York Court of Appeals affirmed, concluding that confidentiality had been waived under the circumstances presented and rejecting the mediator’s qualified-privilege argument, while expressly declining to decide what mediation confidentiality privilege might otherwise exist under New York law.

What happened and what the authority decided

In post-divorce litigation, the wife sought disclosure of information relating to the parties’ earlier mediation. The husband executed a signed waiver releasing the nonparty mediator from maintaining mediation confidentiality.

Because the wife herself sought disclosure of mediation-related matters, the New York Court of Appeals treated her as having waived confidentiality as well.

The parties’ mediation agreement further provided that, if both parties consented, the mediator could communicate with an attorney for either party and release documents to third parties.

The mediator argued that a qualified privilege under CPLR 3101(b) nevertheless protected the mediation information from disclosure. The Court of Appeals rejected that argument under the circumstances presented and affirmed the disclosure order.

Importantly, the court limited its ruling. It expressly stated that it was not deciding what, if any, mediation confidentiality privilege otherwise exists under CPLR 3101(b).

What this tells the mediator

A mediator should not assume that a personal commitment to confidentiality independently overrides a valid waiver authorized by the parties’ mediation agreement. Before disclosing anything, however, the mediator should confirm who possesses the relevant confidentiality rights, whether all required parties have validly waived them, and exactly what information the waiver authorizes.

Practical guidance

• Use an agreement that clearly states who may waive confidentiality and how.
• Confirm that every required participant has knowingly consented in writing.
• Define the exact documents and subjects covered by any waiver.
• Do not disclose beyond the scope of the consent or court order.
• State unresolved privilege questions neutrally and recommend independent legal advice.