Mediation, which offers the promise of a fair and efficient mechanism for resolving thorny disputes, often requires that parties disclose information they would not disclose in litigation. And parties often do so quite freely, under the assumption that such information is and will remain confidential. To encourage full participation and cooperation in mediation, the Local Rules of the U.S. District Court for the Southern District of New York, like many forms of private mediation, provide broad assurances that “[t]he entire mediation process shall be confidential.”1

While the promise of confidentiality for mediation materials is broad, it is not sacrosanct. Judges have struggled with defining when and under what circumstances a third party may obtain discovery of mediation materials. With guidance from the Second Circuit’s 2011 opinion in In re Teligent,2 Southern District Judge Leonard Sand recently issued a decision in Dandong v. Pinnacle Performance3 clarifying that a third party must show extraordinary need, and one that outweighs the strong public interest in preserving a mediation’s presumed confidentiality, in order to obtain disclosure of mediation materials. In re Teligent and Dandong set a high hurdle for the party seeking mediation material to overcome, but the prudent lawyer shepherding his or her client through mediation should be wary of this contingency, particularly where third-party interest in the mediation materials can be anticipated.

‘In re Teligent’s’ Standard

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