Guidance on recent case-law for mediators

by Tony Allen

Mediation: Recent Case Law

First published in May, 2015

In this guidance note, Tony Allen refers to the impact of recent case-law’s, and how crucial these are to the legal status of mediation, mediation content and mediators.

There have been several recent significant court decisions with an impact on mediation and mediators, about which it is right to encourage discussion and to give preliminary outline guidance, without in any way relieving mediators of the need to seek their own legal advice either from their provider organisation or independently, if any such difficulty were to arise for them in practice. Some caution is also needed because a number of these decisions are first instance only, and in some cases a little difficult to reconcile.

The matters covered in this guidance note (which are the opinions of the author of this article only, albeit that CEDR has agreed to publicise this opinion) are:

1 To what extent do the current rules of without prejudice privilege and confidentiality protect what goes on during a mediation (referred to here as “mediation content”) from being given in evidence by anyone involved?

2 Do similar rules apply to pre-mediation and post-mediation day discussions?

3 Might a court find that an oral binding settlement is enforceable , even when the mediation agreement requires any settlement agreement to be in writing signed by the parties for it to be binding?

4 What should a mediator do if asked to give evidence in subsequent litigation about what happened during or after a mediation?

As the mediation community was reminded by Sir Michael Briggs in his keynote speech at the 2014 CMC Conference in Leeds and reinforced by Lord Neuberger in his speech at the 2015 CMC Conference in London, mediation is properly and inevitably subject to the Rule of Law, and cannot expect to be used as a means of permitting injustice, nor would sensible mediators wish it to be. As always, there is a proper balance to be struck between private and public interests, and this paper looks at the legal framework around mediation and the balance as it seems currently to have been struck.

Although this paper is divided into four separate sections, the issues considered and decisions affecting each section often overlap.

Without prejudice privilege and confidentiality and admitting evidence of “mediation content”

Without prejudice privilege and confidentiality as contracted in most mediation agreements are usually conflated by mediators in meetings with parties when giving a broad reassurance as to the confidentiality of the mediation process. However they are actually different in nature, scope and effect. As is explained more fully below, without prejudice privilege does not create general confidentiality – it is (merely) a rule which excludes privileged evidence from being shown to a trial judge, subject to certain exceptions. It is effective to protect material in the event of non-settlement through privileged discussions, but not necessarily where debate arises over whether a mediated settlement was indeed agreed, or is legally valid. Breach of without prejudice privilege might well have procedural or costs consequences for the offender at the hands of a judge, but it would not give rise to a justiciable inter-party cause of action.

However, parties do not merely want to keep the content of settlement discussions (referred to for convenient shorthand as “mediation content”) from the court, especially, though not only, if agreement is not reached. They may well want to prevent undue publicity being given to the existence of a dispute at all, or to the fact that settlement discussions are taking place, or to the fact of settlement or non-settlement following such discussions. Uncontrolled disclosure of such material might adversely affect their reputation or trade or personal secrets, so that parties may agree to retain and impose mutual control on dissemination of anything said during a mediation for the laudable purpose of encouraging settlement. Hence the practice has been for parties and the mediator (who will also often hear a party’s sensitive private confidences as to their commercial or forensic positions and intentions) to contract formally to treat mediation content as confidential. Parties and the mediator (and presumably any signatory mediation provider) can all enforce rights to such confidentiality, in theory by injunction or a claim for damages, if such can be proved.

Judges have been reluctant to allow parties to adduce evidence of confidential matters in court, but ultimately may decide to admit it “in the interests of justice”.

Without prejudice privilege and confidentiality work in one way as between parties to any mediation agreement. As between  mediation parties and anyone who was not party to the mediation or bound by the mediation agreement they operate in a different way.  The position in relation to each also depends on whether the relevant mediation has or has not apparently led to settlement,

(a) Without prejudice privilege as between those who sign the mediation agreement and attend the mediation

The general rule is that discussions during a mediation (as with any genuine settlement discussions of a dispute) automatically attract without prejudice privilege, whether or not specifically mentioned in the mediation agreement, though such a mention (which most agreements include) underlines the contractual nature of such privilege as between parties to the mediation agreement. It broadly means that if no settlement emerges from a mediation , no party can unilaterally introduce mediation content in evidence about the issues being litigated unless all parties (though the mediator has no say over this) agree to waive the privilege.

If the parties agree to waive without prejudice privilege protection, the court can be told of what transpired during a mediation (or indeed any normally privileged settlement discussions) and may use that evidence to decide such issues as costs liabilities as between the parties. Otherwise, evidence cannot be introduced at trial, nor can cross-examination take place, as to any concessions, offers or settlement bids made to each party during a mediation as a way of trying to prove a case, whether communicated directly across the mediation table or indirectly by a mediator from one private room to another. The wisdom of agreeing such a waiver needs to be weighed carefully by parties, as one party’s position is likely to be preferred over the other by a judge[1]. However, material disclosable in any event during litigation is not protected merely by being produced for the first time during a mediation[2].

In two broad circumstances it is possible that a judge may admit normally privileged material to be received in evidence at the behest of one party, even if the other party objects. These are:

 (1) where one party argues that a binding agreement wasreached, despite the absence of any formality required by the mediation agreement, such as signed written settlement terms (this is considered fully in section 3 below); or

(2) where one party seeks to argue that the apparently binding agreement ought to be set aside for some reason. In doing this, the judge will usually be invited to apply one of the established exceptions to without prejudice privilege. The main such exceptions are:

  • If one party asserts that agreement was reached during the mediation, a judge may agree to hear otherwise privileged evidence to explore whether agreement was reached and on what terms. The judge deciding the point inevitably has to hear the privileged material (ironically) “without prejudice” to the ultimate decision as to whether agreement was reached.  If an otherwise binding agreement is found, then the protection of privilege is retrospectively removed, as being outweighed by the public interest of enforcing contracts where validly made. If no agreement is found to have been reached by applying the normal rules of contract, then the normal rule as to without prejudice privilege operates to exclude that evidence from the trial[3]. The judge may simply decide to ignore it, or, if this is too difficult, another judge may need to hear the substantive trial with all privileged material excluded.
  •  Where one party asserts that a purported settlement was induced by fraud, duress or material misrepresentation or some other “unambiguous impropriety” perpetrated during the mediation by another party, a judge may agree to hear otherwise privileged material on the same provisional basis as above, subject to the ultimate finding on this allegation[4]. If the alleged wrongdoing is not found, then the agreement would be upheld. If wrongdoing is found, then the normal remedies would be available.
  • Where one party asserts that the record of the settlement deal reached during the mediation is wrong and requires rectification.
  • Where one party asserts that mediation content needs to be admitted to interpret the meaning of the settlement agreement[5].

In all the above, another party’s objection to the lifting of privilege will not necessarily prevail to prevent admission of mediation content in evidence. Again, the mediator has no power to prevent admission of mediation content material, as the privilege belongs to the parties alone.

It should be noted that any party who raises any such point unsuccessfully and is found to have wasted the court’s time could face a costs sanction.

(b) Confidentiality as between parties to a mediation agreement

The general confidentiality provision in a mediation agreement is signed by, binds, and is enforceable by both the parties and the mediator, if necessary by injunction or (where demonstrable) damages. But generally parties cannot contract to keep information confidential from a court if it constitutes relevant evidence. Normally without prejudice privilege will provide the only, yet usually adequate,protection for parties to a mediation agreement and their advisers from disclosure of mediation content to a judge, certainly insofar as the conveying of information and offers between parties during a mediation. This is so whether done face to face by parties or, as often happens, by the mediator as go-between.

There is a separate question as to the security of what a mediator is told in private by each party when meeting with each separately in their own room. Normally during a mediation the first meetings with each party on their own before and immediately after the joint meeting (if any) often have only private content which the party involved would not want conveyed to the other party – not, at least, until the picture is clearer. Information exchanged during any initial or later joint meeting is clearly jointly communicated between parties. The content of private meetings between mediator and each separate party will normally comprise:

  • Private discussion about that party’s aspirations and fears about their prospects of success in the litigation and any private reasons which make compromise attractive;
  • Private reactions to any information or offer conveyed to that party by the mediator with the other party’s permission;
  • Private discussion as to the best approach to negotiation during the mediation – e.g. what would constitute a wise next offer or not;
  • Authorised inter-party communication of information or offers which the absent party wanted to have specifically conveyed by the mediator (which may occur at any time during a private meeting); and
  • The shaping and finalising of an authorised inter-party communication from that party to the other party.

Several interlinked questions arise. First, could one party to the mediation agreement ever gain access in subsequent litigation to any of the material described that had transpired in private meetings between the mediator and the other party? In view of their mutual confidentiality undertakings, this seems  unlikely without a judicial order to that effect. Does a court have power to order disclosure of such material?  The judge in Farm Assist v DEFRA (No 2)[6] suggested that it could, “in the interests of justice”. He was prepared to contemplate allowing a witness summons served on the mediator to stand, so as to give evidence when the applicant defendant wanted her to be…

 free to give evidence about the entire conduct of the mediation, including her private conversations with DEFRA and FAL and their advisers.

He found that the mediator had an enforceable right to the preservation of confidentiality, and thus had a proper voice in the court-room debate over whether to admit confidential material into evidence. But in what he called “the exceptional circumstances” of that case, the judge was prepared to permit issue of a witness summons which would result in her giving evidence about the whole mediation, including private meetings with both parties. Unfortunately, what might or might not be properly regarded as being “in theinterests of justice” were not defined in the judgment. There was no attempt, for instance, to balance the potential usefulness of hearing from the mediator to assist in deciding the significance of the factual  issue as between the parties against the public interest in preserving private mediation exchanges for the benefit of civil justice through the settling of civil claims in general.

So although contracted confidentiality is different and potentially wider in scope than without prejudice privilege, it is still not proof, on English authority at least, against a judge’s enlisted curiosity where s/he is prepared to find that the interests of justice justify admission of private material. However, in Dow v Bombardier [2014] SC 35, the Supreme Court of Canada decided that in theory at least parties are free to contract a level of confidentiality enforceable by the courts by which they could exclude access to the exceptions to without prejudice privilege. In theory this would prevent a party aggrieved about a mediated outcome from alleging misrepresentation or duress, or that agreement had indeed been reached, despite perhaps the absence of signed written terms where the mediation agreement required signed written settlement terms for them to be enforceable. Tight drafting is required to achieve this, and on the facts the parties were found by the Canadian court not to have excluded access by the court to mediation content. But they firmly found that contract could oust privilege.

Advice to mediators

  • Check with parties before the mediation agreement is finalised whether they have any special requirements as to the level of confidentiality. You as mediator have no say over whether without prejudice privilege applies to exclude mediation content, though you might warn both parties of the risks of waiving privilege, in that a winner and a loser will almost inevitably be declared by a judge.
  • If contractual confidentiality is relied upon to exclude mediation content, you do have a right to invoke it and should consider doing so if you believe that the security of mediation content should be protected in the general interests of mediation, unless this would compromise your neutrality or each party’s perception of your neutrality.
  •  If a settlement is heavily dependent on the truth of an identified fact, which amounts to a representation inducing the settlement, consider suggesting that it be set out in the recitals, to minimise any risk that an aggrieved party might seek to argue misrepresentation and the consequent admission of mediation material.

These issues are of considerably more significance when it comes to the availability or otherwise of confidential information to third parties who were not parties to the mediation or the mediation agreement, which is considered in the next section.

(c) Without prejudice privilege and confidentiality as between mediation parties and strangers not party to the mediation agreement

Without prejudice privilege depends partly on contract and partly on the concept of the public interest in protecting settlement discussions from being opened up in a way that might subvert the value of seeking to settle rather than fight every case. The courts will give fairly wide protection to without prejudice discussions, not apparently limited just to admissions made during settlement discussions. But there have been occasions when a third party not present at the mediation has sought to be told about what happened, and where the courts have contemplated allowing this to happen. Such circumstances might include:

  • Where a claimant settles at mediation on terms allegedly less than they would have recovered in court proceedings if they had been advised properly about the initial terms of the transaction, and then sues a former solicitor or other professional adviser to recover any asserted shortfall, the advisers (or more probably their indemnity insurers) may try to seek access to mediation discussions to see whether the claimant (their former client) under-settled or properly mitigated their loss.
  • Where a claimant refuses to accept settlement terms at a mediation, and later those insuring a former solicitor sued for negligent advice seek to assert that the terms offered should have been accepted, such conduct amounting to failure to mitigate loss.
  • Where a party alleges that his solicitor advised settlement at an undervalue in a mediation, and non-parties to the mediation agreement (especially the defendants’ insurers) require access to mediation material to assess their exposure, risking that other parties to the mediation may have their positions revealed against their own interests.
  • Where a solicitor failed to protect a client from procedural default, resulting in reduced recovery of damages, and the client seeks to recover the shortfall from that solicitor’s insurer, who then wants to investigate questions of mitigation of loss.
  • The spouse or business partner of a fraudster may seek access to mediation content to see the terms on which a mediation settled to check whether any remaining attempt to seek compensation might amount to double recovery.
  • Where an insurer declined or failed to participate in a mediation, it may want to know on what basis a mediated settlement was reached so as to argue that the insured breached a policy condition or made concessions which entitle the insurer to argue that the insured failed to mitigate loss.

Similar problems might arise with trustees, liquidator or former joint clients of a solicitor who have fallen out with each other. Will the courts give access to mediation content to such people?

There is no consistent answer to be derived from the authorities, which are mostly first instance decisions which have unfortunately not been decided in a convenient order, or are appeal decisions which have been subjected to criticism in later cases[7]. The problem exists and cannot be safely ignored by parties to any given mediation. If a third party feels they have a genuine interest in being told on what basis discussions led to settlement in a mediation (or what was argued despite its not leading to settlement) they may seek access to such material, perhaps by seeking disclosure against a non-party in the subsequent proceedings, or even by trying to call the mediator as a witness. Clearly without prejudice privilege can only operate to exclude material from a third party on the grounds of public interest, as there is no contractual nexus on which without prejudice privilege could be founded. There are competing aspects to public interest in such circumstances. One is the need to protect the privacy of settlement discussions so as to avoid reducing their effectiveness as a tool for resolving disputes and saving the courts from unnecessary litigation. Another is the need for courts to be able to rule on genuine disputes using all properly relevant material.

Advice to mediators

  • Mediators need to ask parties privately before a mediation whether they might contemplate seeking any additional remedy from some external source as a consequence of what may emerge at the forthcoming mediation. Further potential parties could then be invited to attend the main or a subsidiary mediation and thus be brought within the privileged discussions, so as to minimise or even avoid difficult third party applications for access to mediation material. If they were to refuse, a court might be invited to deprive a stranger of any right to have access to mediation content because they chose to deprive themselves of the opportunity to hear and influence its direction and outcome by attending.
  • The law in this area exists only at first instance and is confused and unsettled: a Court of Appeal decision to clarify it would be welcome. So if such a set of circumstances arises to the knowledge of a mediator then, subject to confidentiality, advice on next steps might be usefully sought.

(d) Might the courts move towards accepting and defining a discrete mediation privilege?

It seems unlikely that judges will want to exclude mediation discussions as a whole from possible disclosure. They will wish to have available the exceptions to the without prejudice privilege and the opportunity to allow confidentiality to be breached in the interests of justice. The two areas for possible development of the law are:


(1) the “interests of justice” test for allowing confidential information to be given in evidence be defined more fully, so as to allow these to encompass the interests of protecting unnecessary or properly private disclosures at a mediation; and thus

(2) whether a mediation privilege limited to private disclosures in private meetings between mediator and each party might be acknowledged. Thus only what actually passes between parties either across the mediation table or as conveyed by the mediator could ever be admitted in evidence, and then only if an exception to without prejudice privilege applied (or waiver was agreed) and breach of confidentiality was shown to be in ”the interests of justice”. It will take the right kind of case before the Court of Appeal to create such a development, which could perhaps be built on Lord Bingham’s views on Re D,  which concerned views privately expressed to a family conciliator.

Advice to mediators

  • If a mediator is asked to reveal what was said to the mediator in private at a mediation in evidence in open court, this would be a trigger for judicial debate on whether judges might formalise mediation privilege for such “mediator secrets” so as to keep them for all purposes from disclosure to anyone (whether another party at the mediation, a stranger to the mediation or to a judge). Any opportunity to obtain a ruling on this would be welcome.
  • Thus any mediator or mediation provider who encounters such a situation is encouraged to see what might be done in that regard, subject always to the confidentiality which such a decision should preserve.


Pre-mediation and post-mediation day discussions in relation to without prejudice privilege and confidentiality

Most model mediation agreements are drafted around the assumption that the mediation is defined as the day on which the parties and the mediator assemble for joint and private meetings. Furthermore, in the great majority of mediations, although the terms of the mediation agreement are discussed and agreed in advance of the mediation day, the agreement itself is not signed until the start of that day. This means that contractual confidentiality does not technically exist until signing of the formal agreement, unless there is a specific understanding to that effect between mediator and parties, or a court discerns implied confidentiality as a matter of custom. Strictly, therefore, nothing more than without prejudice privilege protection can be said to exist before the mediation day, over which the mediator has no control. Nor may without prejudice privilege be apt to keep exchanges between a mediator and each party privately from being admitted in evidence.

Most mediators subscribe expressly to treat pre-mediation contacts as confidential but whether this is effective is not yet clear, and there is no known authority on this point.

Further, there may well be ambiguity as to the status of discussions which take place after a mediation day has ended. Some provisions in mediation agreements are drafted specifically to have indefinite effect, but it is far from clear whether or not post-mediation discussions are mediation content, and which protections, whether partial or complete, apply. The most controversial matter of this kind relates to whether a requirement that any settlement is in writing signed by the parties to be legally binding remains in force in relation to post-mediation discussions which lead to settlement, This is discussed separately next in section 4 of this paper. The general approach to this area is discussed first.

Courts have expressed differing views as to whether there is a clean-cut end to the mediation when the mediation day ends, Whether it has or has not ended may need to be spelt out and agreed between the parties at the time if it is desired that the mediation is deemed to continue in full force and effect. As will appear in section 3 of this paper below, one court at least (in AB v CD [2013] EWHC (TCC)) has been prepared to find that the effect of a requirement for signed written settlement terms as imposed by the mediation agreement does not survive the mediation day and is no longer essential if settlement terms are discussed later. In Dow v Bombardier[8] the Supreme Court of Canada pointed out that during the mediation it will normally be that confidentiality prevails, while after  the mediation without prejudice may supersede it, though parties are clearly free to widen their contractual obligations to each other if they so choose.,

Advice to mediators

  • Always expressly assure each party with whom you have pre-mediation contact that such discussions are to be treated as confidential as if the proposed mediation agreement had already been signed.
  • Always operate under the auspices of a written mediation agreement and an identified Code of Conduct.

Be clear at the end of a mediation day with the parties what the status of any continuing discussions will be; is the formal mediation over, with mere informal 2014] SC 35

  • without prejudice privilege discussion to continue; or has it been adjourned, with the full force of contractual confidentiality binding the parties and the mediator as to future discussions as well as those which took place on the mediation day?
  • Clarify with the parties whether any future deal need to comply with the requirement to be in writing and signed by the parties before it is binding? See section 3 below.


3 The enforceability of orally agreed settlement terms

Almost all mediation agreements in England and Wales provide specifically that for any settlement to be binding it must be in writing signed by the parties (referred to now in convenient short form as a “signed writing clause”) . This is often mentioned by mediators at the opening of a mediation as being an additional  security measure for parties. By this means, parties can be reassured that no deal can be entered into unwittingly. If nothing is in writing, it is often said, then there cannot be a binding agreement about it. However, some first instance decisions have complicated and confused the apparent simple effect of such provisions.

  • Even when no signed written settlement terms emerge from a mediation day despite the parties having included a signed writing clause in the mediation agreement , a court may assert a right to investigate whether the effect of the signed writing clause has been orally varied by an oral collateral contract, or subverted by waiver or estoppel: however, if none of these are found to have vitiated the effect of that clause, the absence of signed written settlement terms may then be conclusive as to the absence of binding agreement – see Brown v Rice & Patel[9]
  • Conversely, it has been suggested obiter (by the Supreme Court of Canada in Dow v Bombardier[10]) that a signed writing clause might even operate to exclude such an investigation altogether.
  • It may be possible to reinforce the effect of a signed writing clause by specifically contracting to exclude the normal right to go behind without prejudice privilege  (by way of exception to the without prejudice privilege rule) to see whether an agreement has been reached and if so on what terms – see again Dow v Bombardier.
  • A court may find that the effect of a signed writing clause ends at the end of the mediation day and will not prevent an oral settlement from being enforceable if made during later discussions – see AB v CD[11].

Advice to mediators

  • Always include a signed writing clause in every mediation agreement.
  • Contemplate whether your mediation agreement should specifically define the mediation as continuing after the mediation day, at least in relation to any subsequent involvement of the mediator: some mediators are doing this now, but it is not free from difficulty, and parties may not want to hamper later direct discussions without the mediator by the imposition of awkward mediation formality. This must be a matter of choice for mediation providers and mediators, but whatever choice is made should be obvious to parties on the face of the mediation agreement.
  • Warn parties in your opening that the signed writing clause operates even in relation to any partial or merely procedural agreements reached, even if no comprehensive final settlement is reached by the end of the mediation day. Always record any partial agreement or agreement that an offer should be left open until a specified time for acceptance in writing and arrange for it to be signed by the parties.
  • If any question about this arises, seek to assert the primacy and effect of the signed writing clause. If no such signed written settlement terms exist, operate on the assumption that there is no agreement.
  • If final agreement is not reached at the mediation day, clarify with the parties what the legal basis is for any continuing involvement of the mediator in settlement discussions and whether any formality as to signed writing id agreed to be necessary for terms to be binding.


The mediator as a potential witness as to mediation content

If a court is asked to receive mediation content in evidence, one of the obvious potential witnesses to give best evidence of what happened authoritatively is the mediator. Yet the mediator has contracted to be neutral and impartial with equal responsibilities to all parties to every mediation, often having been bound to such an approach by a Code of Conduct. Being used as a witness for possible partisan advantage by one party (the usual situation when this issue arises) is wholly contrary to such a role. And yet mediators are subject to the rule of law. How can this conflict of interest be resolved?

Two English judges to date have accepted the idea that a mediator can be called to give evidence as to mediation content. In Farm Assist v DEFRA (No.2)[12], the court refused to quash a witness summons issued by the defendants against the mediator, who would, if the case had not been discontinued the next day, have been called to give evidence about what happened at all stages of the mediation. Because of the discontinuance, she did not have to give evidence.

In AB v CD[13]the mediator did give evidence on an unexplained basis, limited (it would seem, by the judge’s direction) to the basis on which proposals were left open for discussion after the mediation day, and the content of exchanges which led to apparent settlement on one party’s account but not on the other’s account. Unfortunately, there is no explanation in the judgment as to whether the mediator opposed being called or agreed to do so because the parties and the judge agreed that he should be called, or whether the judge simply ordered it.

However, in each of those cases, both parties to the mediation consented to the calling of the mediator, waiving without prejudice privilege and any right to contractual confidentiality over the mediator’s evidence. In the former case, the court found that the mediator did have the right to enforce contractual confidentiality to prevent disclosure of mediation content, but always subject to admission of such confidential material “in the interests of justice” (which were not discussed or balanced out in detail). The point apparently did not arise in the latter case. So there is no instance as yet of a mediator’s evidence being admitted at the behest of one party in the face of opposition from the other party/ies.

There is no current authority on the enforceability of the usual current wording of the clause in mediation agreements by which a party contracts not to call the mediator as a witness. In Farm Assist (No.2) the the judge was inclined to deflect its effect by construing it strictly, rather like an exemption clause, but that form of clause is no longer generally used. Current clauses purport to protect mediators from being called to give evidence about both the dispute and the mediation.

Advice to mediators

  • Consider what you should do about your mediation notes, if you take them. The fact that you made no notes or have since destroyed those you made will not by itself discourage a judge from allowing a cross-examiner to test out your recollection.
  • Try to resist any unilateral attempt by one party to call you to give evidence: if one party seeks it, ask whether the other party has consented, and if they have not, do not agree without resistance, asking for a court ruling on whether it should happen at the behest of party without the other’s consent. Do seek advice from colleagues, mediation providers or your own independent legal advice.
  • Check and draw the parties’ attention to any right you have retained in the mediation agreement to recover compensation for your time spent in resisting or complying with a requirement to give evidence, and in attending at court.
  • If both/all parties agree to your being called, remind the parties that this may result in one (or even both or all) being dissatisfied with what you say, and that you would prefer not to have your independence and neutrality called into question by being put into the witness box and your evidence used for partisan benefit.
  • Ultimately you may not be able to resist being called as a witness, but in doing so take the approach of being called to assist the court and all parties, rather than being seen to take a partisan standpoint. Treat each party equally, offering to supply a self-drafted witness statement to both/all parties rather than agreeing to have one taken by any party unilaterally.



These issues are all difficult and yet also crucial to the legal status of mediation, mediation content and mediators. If it does nothing else, it is hoped that this paper will have sensitised mediators who read it to these difficulties, and encourage them to discuss them if they arise with their mediation provider or the CMC (subject always to their confidentiality obligations) in order to prevent unintended consequences emerging from an apparently limited and straightforward situation.

© Tony Allen

[1] See for instance in Malmesbury v Strutt & Parker [2008] EWHC 424 (QB) and Corenso v The Convergence Group [2003] EWHC 1805 (QB)

[2] See AWA v Daniels  [1955-95] PNLR 727  (an Australian case) and Aird v Prime Meridian [2006] EWCA Civ 1866

[3] See Brown v Rice and Patel [2007] EWHC 625 (Ch)

[4] As happened in Farm Assist v DEFRA (No.2) [2009] EWHC 1102 (TCC) though in that case, wisely or not, both parties waived privilege

[5] See Oceanbulk Shipping v TMT [2010] UKSC 44 but also Chartbrook v Persimmon Homes  [ 2011] UKHL 38 and Mason v Walton-on-Thames Charity [2010] EWHC 1688 (Ch) and [2011] EWCA Civ1732

[6] [2009] EWHC 1102 (TCC)

[7] For instance  Muller v Linsley Mortimer (dealing only with without prejudice and now arguably undermined by Ofulue v Bossert), Cattley v Pollard (without prejudice considered in following the now somewhat discredited decision in  Muller);  Brown v Rice and Patel (no consideration of the effect of confidentiality); Cumbria Waste Management v Baines Wilson (without prejudice and confidentiality deployed by stranger to mediation to prevent disclosure); and Farm Assist v DEFRA (Nos. 1 and 2) (confidentialityconsidered)

[8] [2014] SC 35

[9] [2007] EWHC 625 (Ch)

[10] [2014] SC 35

[11] [2013] EWHC 1376 (TCC)

[12] [2009] EWHC 1102 (TCC)

[13] [2013] EWHC 1376 (TCC)

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