Mediator To Give Evidence On Mediation

In a recent case the court dismissed a mediator's

application to set aside a witness summons requiring her to provide

evidence. The evidence related to a mediation over which she

presided and which resulted in a settlement, that subsequently

became the subject of litigation.

Background

The issue arose following a mediation some years previously

between Farm Assist Limited (now in liquidation) (FAL) and the

Secretary of State for the Environment, Food and Rural Affairs

(DEFRA), at which the parties reached an amicable settlement.

Some six years after the mediation FAL sought to set aside the

settlement, alleging that it had been agreed under economic duress.

DEFRA wished to call the mediator to give evidence and both parties

agreed that the mediator should be asked to provide evidence,

including details of her private conversations with the parties.

When approached, the mediator informed the parties that she had

retained no relevant documents and had little factual recollection

of the mediation. Unsatisfied with this response, DEFRA served a

witness summons to require the mediator's attendance at the

trial. The mediator attempted to set aside the summons, relying

upon the express provisions of confidentiality and non-attendance

as provided for by the mediation agreement. The mediator also

argued that her evidence would have been confidential and/or

irrelevant.

Decision

The judge decided that the mediator should give evidence and

held as follows:

1. Confidentiality - the proceedings in the case were

   confidential between the parties and the mediator and it would

   therefore require the consent of all three to waive the

   confidentiality. However, the court, will where it is in the

   interests of justice to do so, waive this confidentiality. In this

   case, the allegation of economic duress could only be assessed by

   reference to what had happened in the mediation, and it was

   therefore in the interests of justice for the mediator to give this

   evidence.

2. Privilege – the court recognised that privilege in

   mediation proceedings might exist in many forms and discussed these

   in turn:

   1. legal advice privilege: the use of correspondence between

      solicitor and client at mediation would not result in the privilege

      being lost;

   2. litigation privilege: similarly, where the document is used

      for the purposes of the mediation, the without prejudice privilege

      will not be lost;

   3. without prejudice privilege – all information

      provided in the course of mediation is deemed...