§10008. Confidentiality

Unless subject to Title 1, chapter 13, subchapter 1, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.

REPORTER'S NOTES

This Section restates the general rule in the states regarding the confidentiality of mediation communications outside the context of proceedings.

Typically, confidentiality agreements are enforceable against a signatory under state contract law, through damages and sometimes specific enforcement. See, e.g., Doe v. Roe, 93 Misc.2d 201, 400 N.Y.S.2d 668 (1977). This furthers the Act's underlying policy of party self-determination by permitting the parties to determine whether, when, and how statements made in mediation may be disclosed to friends, family members, business associates, the media and other third parties -- outside the context of proceedings that are covered by the privilege. It also draws a clear line to better guide the parties.

Section 8 was the culmination of efforts in several drafts to understand and manage the reasonable expectations of mediation participants regarding disclosures outside of proceedings. Early drafts were criticized by some in the mediation community for failing to impose an affirmative duty on mediation participants not to disclose mediation communications to third persons outside of the context of the proceedings at which the Section 4 privilege applies. In several subsequent drafts, the Drafters attempted to establish a rule that would prohibit such disclosures, but found it impracticable to do so without imposing a severe risk of civil liability on the many unknowing mediation participants who might discuss their mediations with friends and family members, for example, for any number of salutary reasons.