Court of Appeals Decision in Hauzinger Case

The NY State Court of Appeals recently decided Hauzinger v Hauzinger (available on Westlaw at: N.E.2d, 2008 WL 2519811 (N.Y.), 2008 N.Y. Slip Op. 05781), a case concerning confidentiality between parties and mediators. During the course of their divorce, the Hauzingers retained a mediator. The mediator's Agreement to Mediate included an "opt-out" of confidentiality clause if both parties consented to waive confidentiality, allowing the mediator to communicate with any third party about the mediation and release documents.

The Court of Appeals held that the husband in the case had executed a waiver releasing the mediator from confidentiality and that the wife's subpoena was a waiver of her confidentiality. Therefore, because both parties to mediation waived confidentiality, the mediator could not assert it.

The reason that mediators throughout NY followed the case closely is that the confidentiality of mediation proceedings is considered important to attain the level of candor that may be required. the Court of Appeals specifically refused to address the broader question of confidentiality in mediation, leaving the limits of mediation confidentiality unsettled in New York, particularly in the context of divorce mediations.