The mediation agreement that parties sign before the mediation makes it clear that the process is without prejudice. What that means is that anything that is said, any offers or concessions made on the day can not be referred to by either side in the litigation which follows when the mediation does not result in settlement of the dispute.
My colleague at North West Mediation Solutions, experienced mediator Tim Wallis has written an informative piece on this topic Best Practice – Without Prejudice and Confidentiality.
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