In September 19, 2024, Justice Chan of the New York County Commercial Division issued a decision in Prospect Capital Corp. v. Morgan Lewis & Bockius LLP, 2024 NY Slip Op. 33322(U), refusing to recognize a mediation privilege, explaining:
Finally, Prospect asks this court to create a so-called mediation privilege to protect documents and statements made during the parties’ mediation. Relying on federal case law, Prospect argues that the court should allow disclosure of mediation materials only upon a showing of (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. However, New York courts have not recognized a mediation privilege, and there is no reason to do so here. As recently as last year, courts in this state rejected such a privilege because New York has not adopted the Uniform Mediation Act, and the New York Court of Appeals has not recognized a mediation privilege in New York. Those words remain as true today as they were a year ago; nothing has changed at the statutory or Court of Appeals levels.
(Internal quotations and citations omitted).