How Confidential is a Private Mediation?

One of the tenets of mediation is that it’s a confidential proceeding. Absent a few specific exemptions (like threatening physical harm), what goes on in mediation stays in mediation.

But that concept was tested recently in an interesting case out of the Southern District of New York. In the case Accent Delight International v. Sotheby’s, Accent attempted to subpoena the records arising out of a mediation between Sotheby’s and another party over a $1B sale of art which included Leonard Da Vinci’s Christ as Salvator Mundi.

The applicable law is that “a party seeking disclosure of confidential materials must demonstrate (1) a special need for the confidential material, (2) resulting unfairness from a lack of discovery, and (3) that the need for the evidence outweighs the interest in maintaining confidentiality." Because of that, question for the court became whether or not there was sufficient reason to breach the confidentiality of the mediation.

It did not.

By ruling that the request did not meet the heightened standard, the court was clear that private mediations — such as the one at issue —were entitled to this extra protection. Whereas previous case law focused on court-ordered mediations, this case extended the protections to private mediations.

To read the opinion, click here.