Mediation – Yes, everything is confidential….with some exceptions

The without prejudice protection offered by mediation is often one of the main attractions to this means of alternative dispute resolution.

What is said cannot be used in a later trial or court hearing as it is protected under the Mediation Agreement which reinforces this protected status in the form of a signed contract.

However, there are exceptions even to this Agreement.

In the case of Berkeley Square Holderings & Ors v Lancer Property Asset Management Ltd & Ors [2020] EWHC 1015 (Ch) the Judge considered the circumstances in which mediation papers could be relied upon at a later trial. He summarised the applicable occasions as follows:-

1. If there is a claim of fraud, misrepresentation or undue influence;
2. Where there is a dispute over whether the negotiations were finalised in a concluded settlement;
3. Where the privilege is being used as a cover for perjury, blackmail or another form of unambiguous impropriety.
4. Where, even though there has not been a settlement, an estoppel (or promise/agreement) has been said to arise out of something said during the mediation
5. Where a delay could be explained away by the negotiations;
6. Where it is relevant to the interpretation of the settlement agreement to admit objective facts referred to in the negotiations;
7. Where there is no dispute as to the truth or otherwise of a statement made during the negotiations and admitting the evidence of such a statement is necessary in order to ensure that an issue raised by a party is fairly decided before with court with no adverse effect on the property to which the other parties are entitled. This specifically covers that not to include the statement could result in an unfair trial taking place.

These circumstances are therefore limited and are specific in their nature. The majority of mediations pass without reference or need for them to be relied upon and mediation remains one of the most effective alternative means of resolving a dispute.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk