An important element of most mediation ground rules is the principle of confidentiality and ‘without prejudice’ privilege. While this has not been fully challenged in Ireland, a High Court case in the U.K. in 2009 created some concerns for mediators and mediation scheme managers.
The case is Farm Assist Limited (In Administration) V The Secretary of State for Environment, Food and Rural Affairs (No.2). Briefly the following is what happened.
A mediator, Jane Andrewartha, had mediated in 2003 and the plaintiffs brought a case to set aside the agreement on the basis of undue economic duress on the part of the defendants. The evidence of the mediator in relation to the conduct of the parties during the mediation was considered critical to hearing the case and it was agreed that she should be invited to give evidence. Her reply was essentially that she had little memory of the facts of the case, had kept very few notes and that the mediation was covered by a confidentiality agreement which prevented her from giving evidence. The defendants decided that it was not worth compelling the mediator to attend as a witness, though the plaintiffs decided otherwise and she was summoned as a witness for the upcoming hearing. The mediator challenged the summons and this led the court to consider in some detail the legal position of confidentiality and privilege in mediation.
The Hon Mr Justice Ramsey clarified the general position 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 to the mediator or by waiver of the ‘without prejudice’ privilege.
Note that where the court believes it is in the interest of justice, it will set aside the protection of confidentiality, though it should also be noted that the circumstances of this case were considered to be exceptional.
The mediator also attempted to rely on a clause in the agreement to mediate which stated : 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 parties.
In this case the justice decided that the ‘dispute’ in question was to do with undue economic duress and this was a different dispute to the one which the mediation had dealt with. Consequently the clause could not be relied on.
It should be noted that the case was settled prior to hearing and so the mediator was not forced to give evidence. Some few months after this case, another mediator was summoned to give evidence in a libel case which he had mediated previously. The mediator, Mr Nicholas Pryor, argued that he should not be required to give evidence on the basis that the public interest in protecting the confidentiality of mediators and the mediation process outweighed, or should outweigh, the private interests of justice in a particular case. This aspect had not been dealt with in the Farm Assist’s decision. The parties subsequently decided not to seek his evidence so this remains an open question.
A final point of interest is how the Rt Hon Mr Ramsey viewed Ms Andrewartha’s contention that she could remember little factual detail of the case as it was a long time ago and she had dealt with a large number of mediations in the meantime. Put simply he was not impressed and noted that “Frequently memories are jogged and recollections come to mind when documents are shown to witnesses and they have the opportunity to focus, in context, on events some years earlier. In addition…..as a general rule it will not be set aside because the witness says they cannot recall matters.”
So, while there is no cause for immediate alarm, the case illustrates that mediator confidentiality may not enjoy an exalted position when viewed from a strictly legal standpoint.
Article by Brendan Schütte
Please note that this article is not offered as legal advice and should not be relied upon as such.