Clients at my mediations have all heard me say something along the lines of “the beauty of mediation, of course, is that it is confidential and without prejudice” which is true. But what does that mean? There are circumstances in which statements made or documents disclosed in a mediation can be used in evidence in some subsequent proceedings.
In Farm Assist Limited v The Secretary of State for the Environment, Food and Rural Affairs (DEFRA) an experienced Mediator, Jane Andrewartha, a partner in Clyde & Co. LLP, applied to set aside or vary under CPR 34.3 a witness summons seeking her attendance at the trial of the action . Her application was dismissed by Mr Justice Ramsey sitting in the Technology and Construction Court.
Ramsey J reviewed the recent line of authorities including Re D (Minors) (Conciliation: Disclosure of Information [1993] Fam 231, D v NSPCC [1978] A.C. 171, Brown v Rice [2007] EWHC 625 (Ch), Aird v Prime Meridian [2006] EWCA Civ 1866, Cumbria Waste Management v Baines Wilson [2008] EWHC 786 and Muller v Lindsay & Mortimer [1994] 1 PNLR 74. He summarised confidentiality and privilege in mediation succinctly at paragraph 44:
Therefore, in my judgment, the position as to confidentiality, privilege and the without prejudice principle in relation to mediation is generally as follows:
(1) Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.
(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
(3) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure without prejudice privilege.
The judge held that it was in the interests of justice that the Mediator should give evidence as to what was said and done in the mediation. He gave five reasons for this decision which are set out in paragraph 53. Reason (5) is somewhat circuitous – it is in the interests of justice because
whilst the Mediator has a right to rely on the confidentiality provision in the Mediation Agreement, I consider that this is a case where, as an exception, the interests of justice lie strongly in favour of evidence being given of what was said and done.
I don’t find that explanation satisfactory. Why does it lie strongly in favour …? Presumably it is because of reason (1).
The Mediator, as is common, had provisions in the mediation agreement that the parties would not call the Mediator as a witness. Paragraph 13 of the agreement said :
13. None of the parties to the Mediation Agreement will call the Mediator as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the Dispute and the Mediator will not voluntarily act in any such capacity without the written agreement of all the Parties.
Mr Justice Ramsey’s view was that this term of the agreement could not be enforced by the Mediator because the phrase “in relation to the Dispute” meant limited to litigation or arbitration in relation to the underlying dispute – namely work performed by FAL for DEFRA during the foot and mouth outbreak. The current dispute was something different, namely was the settlement agreement entered into under duress? He said, obiter, that even if it did apply it would not lead to the witness summons being set aside, rather it would be a factor for the court to consider in deciding whether, in the interests of justice, the Mediator should be called as a witness.
So, I look forward to seeing you in court soon!
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