Mediators and Separating Couples, Beware!

Attorney Carl R. Vahl, of Olean, NY, has since 1999 run PeaceMaker Mediation, in addition to his regular law practice. In that capacity he has, according to his firm's Web site, completed more than 100 mediations covering subjects such as divorce, child custody and commercial disputes.

Prior to filing for divorce, Richard and Aurela Hauzinger sought Vahl's help in working out the terms of their separation agreement. Before beginning the mediation discussions, the Hauzingers entered into a mediation agreement, which contained a confidentiality clause. With Vahl's assistance, the couple crafted and executed a separation agreement.

In the later-filed divorce action, one of the divorcing parties, seeking to have the settlement agreement set aside, subpoenaed Vahl as a witness. Vahl moved to quash the subpoena, citing to the confidentiality clause of the mediation agreement. Supreme Court, Cattaraugus County, denied the motion, and Vahl appealed.

The Fourth Department sided with the Supreme Court, stating, 'Inasmuch 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 ' and in refusing to quash the subpoena as a matter of public policy.' Hauzinger v. Hauzinger, '- N.Y.S.2d ”, 2007 WL 2812152 (4^th Dept.,2007). The court went on to say: '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.'

The Uniform Mediation Act

The Fourth Department's mention of its unwillingness to enforce the Uniform Mediation Act (UMA) seems to imply that because the UMA has not been adopted in New York, this State has signaled its indifference to preserving the confidentiality of mediation communications. Thus, if the testimony of the mediator might help to establish whether the terms of the separation agreement 'were fair and reasonable at the time of the making of the agreement,' his compelled testimony is fair game, confidentiality agreement or no.

The Uniform Mediation Act (UMA) was drafted in 2001 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), in conjunction with the Amercian Bar Association's Dispute Resolution section. It was meant, among other things, to promote participant honesty and openness through the assurance of the confidentiality of the mediation process. UMA, Prefatory Note, p. 6. The model act contains language granting certain privileges against disclosure of mediation transactions during legal proceedings. These privileges, which do not cover all aspects of the mediation, can be asserted by the mediator and other participants in refusing to disclose mediation communications or to prevent other mediation participants from doing so. The model act also includes among its provisions Section 8, which states: 'Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.' The NCCUSL recommended adoption of the UMA by the states, but only some of them have done so, often with modifications to address concerns expressed by national and state groups and individuals.

The Association for Conflict Resolution, a national and international professional organization that serves mediators, arbitrators and others in the field of conflict resolution, only conditionally gave its approval to the UMA by an April 2002 resolution. That resolution stated that one of the group's reservations to approval of the Act was the fact that it did not provide broad enough 'protection for the confidentiality of mediation communications and extend confidentiality beyond the protections provided in the UMA for judicial, administrative, arbitral or other adjudicative processes.' ACR Resolution on the Uniform Mediation Act (UMA), http://www.acrnet.org/ uma/resolution.htm (last accessed 10/10/07).

The New York State Bar Association, for various reasons, recommended against adoption of the UMA in this State. One of the reasons cited was that the Act did not define properly which mediation communications would be considered confidential, leaving mediation participants unsure of their rights and responsibilities.

The New York State Dispute Resolution Association (NYDRA) in 2004 also merely 'conditionally' supported the adoption of the Act, stating, 'the UMA's use of a hybrid evidentiary privilege, rather than a true process confidentiality, will create an uncertainty that will defeat the very core principles which NYSDRA supports,' such as promoting uniformity and protecting the integrity of mediation. New York State Dispute Resolution Association, The Uniform Mediation Act, Position Paper, http://www.nysdra.org/articles/article_details.asp?ID=109 (last accessed 10/10/07).

These and other critics of the UMA saw the proposed legislation to be a step down from the traditional, near-total, mediation confidentiality parties generally agree to before beginning discussion of their underlying disputes; it was the underinclusiveness of protections to confidentiality that concerned them.

The Real Issue

The public policy that is really at stake when parties are granted discovery of matters discussed in mediation is not enforcement of laws that have not yet been passed, but the State's interest in encouraging settlement attempts. This has been a concern of the State of New York and of other jurisdictions for many years; settlement tends to decrease animosity between the parties, speed resolution of disputes and save court resources. When courts disregard contracted-for mediation confidentiality, it sends a message to future mediation participants that they had better remain guarded in what they say and do because their 'confidential' disclosures may some day get aired in court. Unfortunately, that may be just the message the Hauzinger decision sends.

Janice G. Inman is Editor-in-Chief of this newsletter.

The promise of confidentiality has long been a mainstay of the mediation process. It is generally considered essential to the success of the mediation, which loses its value if participants are unwilling to speak openly and share information important to a fair resolution for all.

Mediation participants would be far more circumspect if they thought their discussions and disclosures could be used against them in a later judicial proceeding. With this in mind, let's consider the potential impact of a recent case in which the Appellate Division, Fourth Department, determined that a confidentiality clause in a divorcing couple's mediation agreement need not preclude the mediator from being compelled to give testimony in their subsequent divorce action.

The Facts: Hauzinger v. Hauzinger

Attorney Carl R. Vahl, of Olean, NY, has since 1999 run PeaceMaker Mediation, in addition to his regular law practice. In that capacity he has, according to his firm's Web site, completed more than 100 mediations covering subjects such as divorce, child custody and commercial disputes.

Prior to filing for divorce, Richard and Aurela Hauzinger sought Vahl's help in working out the terms of their separation agreement. Before beginning the mediation discussions, the Hauzingers entered into a mediation agreement, which contained a confidentiality clause. With Vahl's assistance, the couple crafted and executed a separation agreement.

In the later-filed divorce action, one of the divorcing parties, seeking to have the settlement agreement set aside, subpoenaed Vahl as a witness. Vahl moved to quash the subpoena, citing to the confidentiality clause of the mediation agreement. Supreme Court, Cattaraugus County, denied the motion, and Vahl appealed.

The Fourth Department sided with the Supreme Court, stating, 'Inasmuch 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 ' and in refusing to quash the subpoena as a matter of public policy.' Hauzinger v. Hauzinger, '- N.Y.S.2d ”, 2007 WL 2812152 (4^th Dept.,2007). The court went on to say: '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.'

The Uniform Mediation Act

The Fourth Department's mention of its unwillingness to enforce the Uniform Mediation Act (UMA) seems to imply that because the UMA has not been adopted in New York, this State has signaled its indifference to preserving the confidentiality of mediation communications. Thus, if the testimony of the mediator might help to establish whether the terms of the separation agreement 'were fair and reasonable at the time of the making of the agreement,' his compelled testimony is fair game, confidentiality agreement or no.

The Uniform Mediation Act (UMA) was drafted in 2001 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), in conjunction with the Amercian Bar Association's Dispute Resolution section. It was meant, among other things, to promote participant honesty and openness through the assurance of the confidentiality of the mediation process. UMA, Prefatory Note, p. 6. The model act contains language granting certain privileges against disclosure of mediation transactions during legal proceedings. These privileges, which do not cover all aspects of the mediation, can be asserted by the mediator and other participants in refusing to disclose mediation communications or to prevent other mediation participants from doing so. The model act also includes among its provisions Section 8, which states: 'Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.' The NCCUSL recommended adoption of the UMA by the states, but only some of them have done so, often with modifications to address concerns expressed by national and state groups and individuals.

The Association for Conflict Resolution, a national and international professional organization that serves mediators, arbitrators and others in the field of conflict resolution, only conditionally gave its approval to the UMA by an April 2002 resolution. That resolution stated that one of the group's reservations to approval of the Act was the fact that it did not provide broad enough 'protection for the confidentiality of mediation communications and extend confidentiality beyond the protections provided in the UMA for judicial, administrative, arbitral or other adjudicative processes.' ACR Resolution on the Uniform Mediation Act (UMA), http://www.acrnet.org/ uma/resolution.htm (last accessed 10/10/07).

The New York State Bar Association, for various reasons, recommended against adoption of the UMA in this State. One of the reasons cited was that the Act did not define properly which mediation communications would be considered confidential, leaving mediation participants unsure of their rights and responsibilities.

The New York State Dispute Resolution Association (NYDRA) in 2004 also merely 'conditionally' supported the adoption of the Act, stating, 'the UMA's use of a hybrid evidentiary privilege, rather than a true process confidentiality, will create an uncertainty that will defeat the very core principles which NYSDRA supports,' such as promoting uniformity and protecting the integrity of mediation. New York State Dispute Resolution Association, The Uniform Mediation Act, Position Paper, http://www.nysdra.org/articles/article_details.asp?ID=109 (last accessed 10/10/07).

These and other critics of the UMA saw the proposed legislation to be a step down from the traditional, near-total, mediation confidentiality parties generally agree to before beginning discussion of their underlying disputes; it was the underinclusiveness of protections to confidentiality that concerned them.

The Real Issue

The public policy that is really at stake when parties are granted discovery of matters discussed in mediation is not enforcement of laws that have not yet been passed, but the State's interest in encouraging settlement attempts. This has been a concern of the State of New York and of other jurisdictions for many years; settlement tends to decrease animosity between the parties, speed resolution of disputes and save court resources. When courts disregard contracted-for mediation confidentiality, it sends a message to future mediation participants that they had better remain guarded in what they say and do because their 'confidential' disclosures may some day get aired in court. Unfortunately, that may be just the message the Hauzinger decision sends.

Janice G. Inman is Editor-in-Chief of this newsletter.