Mediator´s Confidentiality – court subpoenas Mediator
29th July 2008
Confidentiality is one of the foundation stones of mediation. Such confidentiality has long been respected by parties, professionals and courts. However, there is an increasing fear that such boundaries are being tested.
In a recent court case in the US (Hauzinger v Hauzinger) mediator´s confidentiality has been overridden and the court has ordered the mediator to disclose. This disclosure was the result of two specific conditions. Firstly the mediators Agreement to Mediate included a provision that allowed mediator disclosure subject to both parties agreeing to this. Secondly, with one party having waived the confidentiality right, the stage was set for permission to disclose; the other party in subpoening the mediator was deemed to have similarly waived the confidentiality right.
The court has made no comment on general confideniality provisions with respect to mediation. See p. 40 onwards on the ADR Panel review for a discussion.
See Link – NY Courts