Mediation Confidentiality in New York? Not According to Hauzinger Decision

Appellate Division, Fourth Judicial Department

CA 07-00659

PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ.

RICHARD M. HAUZINGER, PLAINTIFF,

V MEMORANDUM AND ORDER AURELA G. HAUZINGER, DEFENDANT-RESPONDENT. CARL R. VAHL, ESQ., APPELLANT.

CARL R. VAHL, OLEAN, APPELLANT PRO SE.

MORIARTY & GROCOTT, BUFFALO (ROBERT B. MORIARTY OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered July 20, 2006 in a divorce action. The order denied the motion of a nonparty witness seeking, inter alia, to quash a subpoena issued by defendant.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Carl R. Vahl, Esq. (appellant), a nonparty witness in this divorce action, appeals from an order denying his motion seeking, inter alia, to quash the subpoena issued by defendant for his appearance at a deposition in this action and for his records in connection with the mediation process that he conducted with the parties prior to the commencement of the action. The parties were not represented by counsel when they participated in the mediation process that concluded with the execution of a separation agreement. Even assuming, arguendo, that the subpoena and accompanying notice did not advise appellant of the circumstances or reasons such disclosure [was] sought or required (CPLR 3101 [a] [4]), we conclude that defendant's response to appellant's motion provided the requisite information (see Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d104, 111). Thus, Supreme Court did not improvidently exercise its discretion in denying that part of appellant's motion seeking to quash the subpoena (see generally Koramblyum v Medvedovsky, 19 AD3d 651,652). In as much as defendant seeks to establish the circumstances surrounding the execution of the separation agreement, and the court must determine in this action whether the terms of the separation agreement were fair and reasonable at the time of the making of the agreement (Domestic Relations Law § 236 [B] [3]), we reject appellant's contention that the court abused its discretion in refusing to enforce the confidentiality agreement entered into by the parties as part of the mediation process (cf. Lynbrook Glass & Architectural Metals Corp. v Elite Assoc., 238 AD2d 319), and in refusing to quash the subpoena as a matter of public policy. Although appellant urges this Court to apply the confidentiality provisions in the Uniform Mediation Act as a matter of public policy, New York has not adopted that Act and we decline to do so.

Entered: September 28, 2007 JoAnn M. Wahl Clerk of the Court

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NJ Mediator	01/20/08
I believe UMA differentiates between the privilege that mediators, parties or even non-parties that participate in a mediation have to refuse to disclose mediation communications or prevent others from doing so during an adjudicative proceeding. The drafters say this can only be created by statue not by agreement between the parties. That privilege, I believe is in Section 4 of the act. Confidentiality on the other hand applies to situations other than adjudicatory proceeding (Section 9?) and can be agreed by the parties in any way they want. My question is: does NY has any statue creating an evidentiary privilege for mediators or parties? If not, passage of one should be at the top of the priorities for ALL mediators in NY (maybe it is already..) Add New Comment

NJ Mediator	01/19/08
priviledge and confidentiality..
I believe UMA differentiates between the priviledge that mediators, parties or even non-parties that participate in a mediation have to refuse to disclose mediation communications or prevent others from doing so during an adjudicative proceeding. The drafters say this can only be created by statue not by agreement between the parties. That priviledge, I believe is in Section 4 of the act. Confidentiality on the other hand applies to situations other than adjudicatory proceeding (Section 9?) and can be agreed by the parties in any way they want. My question is: does NY has any statue creating an evidentiary privilege for mediators or parties? If not, passage of one should be at the top of the priorities for ALL mediators in NY (maybe it is already..) Add New Comment

Paula Young,   Grundy VA	pyoung@asl.edu      11/04/07
Cost to You of Resisting Subpoena
I am writing a law review article on insurance coverage for this type of proceeding. Did you have insurance coverage for the defense costs? If you did or did not, what were your out-of-pocket cost to resist the supoena? Can you segregate them by trial level costs vs. appeal costs? Thanks. Add New Comment

Ed ,   Los Angeles CA	11/02/07
So you require a Judge Mediator
The courts decision just shows you that the bench has no idea what the mediation process is all about. Confidetiality goes to the very heart of the "Peace Making" process. The bench still insists that the process has to be settled in the adverserial arena. It is my opinion that the courts order should be defied re breaching confidetiality and perhaps people on the bench that understand the process wil exhibit some sanity. ed davis Add New Comment

Carl Vahl,   Olean NY	carlvahlesq@msn.com      11/01/07
NY Mediator Confidentiality
I am the mediator involved in this decision. Yes, I did have a comprehensive confidentiality agreement with a specific agreement not to subpoena the mediator. Neither the lower court nor the appellate court even mentioned the existance of the confidentiality agreement which was a large part of my brief. The whole decision is as published on this web site. It was brief and not even accurate. I did not ask the court to adopt the UMA. I referred to the UMA as an example of how important confidentiality is to the mediation process. I am an attorney with 22 years experience in divorce and family law and have been mediating since 1998. I completed my mediation training through the Coast to Coast Mediation Center and have undertaken substantial family mediation specific continuing education at ACR conferances. This is very poor law. I sort of expected the lower court to do what it did but I was quite confident that the Appellant Division would have a more favorable outlook on the mediation process. A group of concerned mediator/lawyers in NY are involved in considering seeking leave to appeal to the court of appeals. If you want to see a copy of my brief I will e-mail it to you if you e-mail me. Perhaps this decision will serve as a catalyst to pushing legislators to adopt the UMA. Add New Comment

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