Are mediation communications confidential under New York law?
Direct Answer
New York has mediation confidentiality protections, but they are less comprehensive than states that have adopted the Uniform Mediation Act. Confidentiality often depends on statutes, court rules, and mediation agreements.
New York's mediation confidentiality framework is less comprehensive than Florida's and relies on a combination of statutory provisions, court rules, and contractual agreements. CPLR §4547 provides that compromise offers and statements made during settlement negotiations — including mediation — are inadmissible as evidence of liability. However, this provision is narrower than Florida's §44.405 because it does not create a true evidentiary privilege — it only bars use of the statements to prove liability, not all uses. For CDRC mediations, Judiciary Law §849-b(6) provides that all communications made in the course of a CDRC mediation are confidential and not subject to disclosure in any judicial or administrative proceeding. For court-annexed mediations in the Commercial Division and other programs, the confidentiality is typically governed by the ADR program's rules and the parties' mediation agreement. Practitioners should always execute a written mediation agreement that expressly addresses confidentiality, the scope of the privilege, and any exceptions. The Uniform Mediation Act (UMA), which provides a comprehensive confidentiality framework, has not been adopted in New York.