Current through Register Vol. 46, No. 39, September 25, 2024
(a) Except as
otherwise provided herein or as otherwise required by law, all communications,
memoranda, and work products made in preparation for, during, or in connection
with an ADR process conducted by a mediator or neutral evaluator to whom a
dispute is referred pursuant to this Part shall be confidential and not subject
to disclosure in any judicial or administrative proceeding.
(b)
(1)
Session information. A mediator or neutral evaluator may report to court ADR
program administrative personnel details as to an ADR process such mediator or
neutral evaluator is conducting pursuant to this Part including: (i) the
duration of a session conducted as part of such process, (ii) whether the
parties thereto requested and held additional sessions and session dates, (iii)
whether the dispute subject to the ADR process was resolved in whole or in
part, (iv) whether the dispute remains unresolved, and (v) whether one or more
parties opted out of referral to an ADR process where authorized to do so
(without disclosing the name(s) of that party or parties), (vi) whether the
mediator or neutral evaluator had a conflict of interest, and (vii) whether the
dispute is not appropriate for the process. The foregoing shall be reported
without comment on any substantive aspect of the dispute.
(2) Written agreement settling a dispute. A
writing signed by all parties embodying a negotiated agreement settling a
dispute that has been referred to an ADR process pursuant to this Part, in
compliance with statutory requirements, if any, may be submitted to the court
for review on consent of all parties.
(3) Threats of imminent, serious harm.
Nothing in this section shall prohibit a mediator or neutral evaluator
conducting an ADR process to which a dispute has been referred pursuant to this
Part or a party to that dispute from notifying any potential victim and/or the
appropriate authorities where the mediator or neutral evaluator or the party to
the dispute becomes aware that information or a communication disclosed in that
process constitutes a credible threat of serious and imminent harm to the
mediator or neutral evaluator, a party to the dispute, or any other person or
entity.
(4) Child abuse or neglect.
If information or a communication reveals reasonable cause to suspect that a
child is an "abused child" or a "neglected child" as defined by subdivisions
(e) and (f) of section
1012
(e) of the Family Court Act, respectively,
appropriate authorities may be notified.
(5) Complaints or claims of wrongdoing or
malpractice. Any participant in an ADR process to which a dispute has been
referred pursuant to this Part pursuing or defending against a complaint or
claim of wrongdoing or legal malpractice arising from such ADR process may seek
party or court permission to reveal, or may be compelled to disclose, otherwise
confidential information or communications, to the extent directed by court
order or through party agreement, or, where appropriate, through the mediation
complaint process approved by the UCS, or through any other state disciplinary
or law enforcement proceeding. Such disclosure shall be permitted only to the
extent necessary to pursue or defend against such complaint or claim.
(6) To collect an authorized, unpaid fee for
services in relation to an ADR process, a mediator or neutral evaluator may
disclose the services such mediator or neutral evaluator has
rendered.
(7) Research and
education. Information or a communication may be disclosed for research or
educational purposes provided that the names of the parties, other identifying
information, and specific facts related to the issues in controversy shall
remain confidential.
(c)
Parties to an ADR process to which a dispute has been referred pursuant to this
Part and their counsel, if any, may agree to waive confidentiality as to
certain information or communications. Such waiver shall be in writing and
signed by each party to the dispute, or their counsel, or the parties or their
counsel may agree to such waiver on the record of the court in which the
dispute is pending. Each waiver shall specify the information or
communication(s) that may be disclosed, the person or entity to whom the
disclosure may be made, and the purpose of the disclosure. The court may not
consider or draw an adverse inference by a party's decision to maintain
confidentiality.
(d) Mediators and
neutral evaluators and their notes or other work product shall not be subject
to compelled testimony or discovery.
(e) Roster mediators shall be subject to the
standards of conduct for mediators in court-referred ADR promulgated by the
Office of Court Administration.
