If you’ve been paying attention today’s news, you’ve probably heard that the owners of the New York Mets baseball team and Irving Pickard, the trustee for the Madoff vicitms, settled the Trustee’s claim for $1billion in damages for a reported $162million.  This article in the NYTimes gives some interesting information about the case generally and one fact that I find totally interesting.  Former New York Governor Mario Cuomo acted as mediator and brokered the settlement.  Being outside of the Big Apple, I had no idea that we can claim Cuomo as one of our own.  But more importantly, Cuomo was interviewed by the Times about the mediation.  Here’s his big quote, as

What you do in mediation is recite the realities. You don’t have to be brilliant. It’s called common sense.

Who knew mediation was so easy ??  More seriously, let me get this straight – the mediator gave an interview about the mediation?  Hmmm. 

I guess it’s not that surprising in the overall scheme of things.  This was a high profile case, Cuomo is a high profile guy who needs to hustle business in the future, and his quotes were pretty plain – heck I could have given the same quotes discussing nearly any mediation I’ve done.  I’ll give Cuomo a “no harm, no foul” on this one.  But it brings to mind the contours of confidentiality protection, a topic all mediation instructors like to play with.  At conferences, we mediators talk about cases, but none of us listeners knows who the parties are.  Is that too much disclosure?  How about other high profile mediations – notably the one about the DOJ-Microsoft settlement – that are so well known they’re almost used as case studies.  In fact the DOJ-Microsoft case was profiled in Vanity Fair (or was it the New Yorker?) years ago.  How on earth did the reporter get all of the info about that mediation?  Who is talking with the reporter?  And why didn’t the parties do something about it? 

Clearly confidentiality protection for mediation communications is important, but I think mediation confidentiality might not be as important as we think it is.  In my experience, parties routinely allow disclosure of information from a caucus to their counterparts, which makes me think that parties are going to negotiate nearly the same whether a mediator is there or not.  Thus, the added protection isn’t going to result in information being disclosed that otherwise would not be disclosed.  Just a thought.  And don’t even get me started on the pyrrhic victory of California’s mediation confidentiality case law.  I’ll save that for another time.

Hat tip – Above the Law