The importance of confidentiality in mediation

The importance of confidentiality in mediation

A High Court judgment published last week both highlights and confirms the importance of confidentiality in mediation between separating couples.

Many separating couples now choose mediation as a way of resolving disputes over arrangements for children and finances. Mediation involves one or more meetings with a trained mediator, who will try to help the couple resolve the dispute by agreement.

In the course of those meetings the couple will enter into detailed discussions, often including putting forward proposals aimed at settling the dispute. But, as we will see, sometimes this means saying something that the party will not want repeated outside of mediation, unless the proposal is accepted. In particular, they will not want the other party to use it against them in any future court proceedings.

Without prejudice

This is similar to the situation with a settlement proposal put forward on a ‘without prejudice’ basis: if the proposal is not accepted, then the party who put it forward cannot later be held to it.

This may be better explained by an example. Imagine that a party put forward a without prejudice settlement proposal that they would accept a lump sum of £100,000. The proposal is not accepted, and the case goes to court. It then becomes clear that the court is likely to award that party much more than £100,000. The other party wants to show proposal to the court, as evidence that the first party needs no more than £100,000. However, as the proposal was made without prejudice the court will not look at it, or take it into account.

So to the High Court case. It actually involved a mother’s application for the return of her child to the USA, where she and the child had been living.

The parties had previously gone to mediation to try to agree arrangements for the child, and the father wanted the court to be told details of the discussions between the parties in the mediation, as presumably he thought that these would support his case that the child should not be returned to the USA.

The court had to decide whether the mediation discussions should be disclosed.

Mediation privilege

The judge set out the law on ‘mediation privilege’, as it is called: that discussions in mediation are privileged against disclosure. There are a few exceptions to this rule, for example where an allegation is made within a mediation that someone (particularly a child) is at risk of harm.

However, the father did not claim that any exception applied here. Instead, he argued that mediation privilege should give way to the wider interests of justice, i.e. establishing the truth, and his right to a fair trial.

The judge did not agree. Whilst there was undoubtedly a public interest in the court being able to establish the truth, he said, parties in mediation must be free to discuss candidly all options for settlement and ‘think the unthinkable’, without fearing that their words will be used against them in any subsequent litigation.

As to the mediators themselves, he said that they “must be free to perform their valuable role without fearing they will be dragged into that litigation either by court orders for provision of their notes or to be called to give evidence for one parent and against the other.” Otherwise, he said, the mediation process is likely to fail.

The parties may agree to waive the privilege, so that the discussions can be disclosed, but that had not happened here.

Accordingly, the court ordered that the mediation discussions could not be disclosed.

The case is an important confirmation that discussions in mediation are confidential. Parties in mediation may therefore be reassured that any proposals that they might put forward in mediation will not be disclosed to the court, unless they are accepted by the other party.