When the parties started their mediation, they signed an agreement with the mediator with the following clause:

In this case, both parties during a subsequent litigation joined in their desire to call the mediator as a witness to testify, but the mediator was against it. The court cited the New York State Manual for Administrative Law Judges and Hearing Officers and Judge Judith S. Kay's ADR Task Force report, which stated that "The mediator shall not be called as a witness at trial." Justice Garguilo agreed with the mediator that as a matter of public policy confidentiality was important. However, he noted that in this case both parties wanted the mediator called. The court's decision to quash the subpoena finally rested on the fact that the parties contracted with the mediator by signing an agreement with the clause noted above. The Court chose not to disturb their contract.