Confidentiality in mediations - when can a mediator be called to give evidence in Court?

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In the first of two articles, Michael Axe reports on a recent English High Court decision that has clarified when a mediator will be ordered to give evidence.

In light of the costs that are involved in pursuing large litigation cases all the way through to trial, more and more parties are agreeing to use ADR (Alternative Dispute Resolution) methods to attempt to settle their disputes, either as part of ongoing litigation proceedings or as an alternative to going through the Courts. Probably the most popular form of ADR is mediation, as mediation allows the parties to retain a high degree of control over the resolution of the dispute, as opposed to having a decision imposed on them by a third party such as a judge or arbitrator.

One of the central concepts of mediation is that the process is confidential, allowing the parties to negotiate freely without fear that any comments made, special documents produced or concessions granted in the context of attempting to reach a settlement will later be used against them in Court proceedings.

However, the Court's decision in the case of Farm Assist Limited (In Administration) v The Secretary of State for Environment, Food and Rural Affairs served as a reminder to participants in mediations that parties who engage in serious misconduct during the mediation process should not assume that they will be able to hide behind confidentiality provisions and privilege. Equally, it sent the clear message to Mediators that the Courts will look at any contractual protection provisions relating to the Mediator with a critical eye.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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