10 N.Y.3d 923 (2008)

Mediation confidentiality is not absolute and can be waived by the parties involved, particularly when the mediation agreement itself contemplates such a waiver.

Summary

This case concerns the enforceability of mediation confidentiality. The husband waived confidentiality, and the wife sought disclosure of mediation matters. The mediator claimed a qualified privilege under CPLR 3101(b). The Court of Appeals held that the lower courts did not abuse their discretion in ordering disclosure because both parties effectively waived confidentiality through their actions and the provisions of the mediation agreement. The agreement allowed the mediator to communicate with attorneys and release documents if both parties consented, which they did. This case emphasizes that mediation confidentiality can be contractually limited and voluntarily waived.

Facts

Richard Hauzinger (husband) and Aurela Hauzinger (wife) engaged in mediation during their divorce proceedings. The mediation agreement contained a provision allowing the mediator to communicate with the parties’ attorneys and release documents if both parties consented. The husband signed a waiver releasing the mediator from maintaining confidentiality. The wife sought disclosure of communications from the mediation process. The mediator, Carl Vahl, Esq., resisted the disclosure, asserting a qualified privilege to maintain confidentiality.

Procedural History

The lower court ordered disclosure of the mediation communications. The Appellate Division affirmed this order. The Court of Appeals granted leave to appeal and certified the question of whether the Appellate Division order was properly made.

Issue(s)

Whether a mediator can assert a qualified privilege to maintain mediation confidentiality under CPLR 3101(b) when both parties to the mediation have effectively waived that confidentiality through their actions and the terms of their mediation agreement.

Holding

No, because the husband signed a waiver and the wife sought disclosure, and the mediation agreement itself allowed for disclosure with both parties’ consent, the mediator’s claim of privilege is without merit.

Court’s Reasoning

The Court of Appeals focused on the fact that the husband executed a waiver releasing the mediator from confidentiality obligations. Furthermore, the wife, by seeking disclosure, also demonstrated a willingness to waive confidentiality. Crucially, the mediation agreement contained a provision allowing the mediator to communicate with the parties’ attorneys and release documents to third parties with the consent of both parties. The court emphasized that, in these specific circumstances, the mediator’s claim of a qualified privilege under CPLR 3101(b) was not valid.

The Court stated, “The mediator’s claim that a qualified privilege exists, pursuant to CPLR 3101 (b), in maintaining mediation confidentiality is without merit where the privilege has been waived.”

The court declined to address the broader question of what, if any, mediation confidentiality privilege exists under CPLR 3101(b) in other circumstances, explicitly limiting its holding to the specific facts of this case where confidentiality had been waived. This implies that a confidentiality privilege might exist in other situations, but the existence and scope of such a privilege were left for another day.

The decision underscores the importance of carefully drafted mediation agreements that clearly define the scope and limitations of confidentiality. It also highlights that parties can waive confidentiality protections through their conduct.