Interests of justice can override confidentiality in mediation proceedings
The Civil Mediation Council has published a guidance note concerning confidentiality in mediation proceedings following a High Court ruling that in deciding whether a settlement agreement arising from the mediation should be set aside for economic duress, exceptionally a mediator can be ordered to give evidence about what took place, if that is in the interests of justice.
In Farm Assist Limited and The Secretary of State for DEFRA, the High Court held that in deciding whether a settlement agreement arising from mediation should be set aside for economic duress (where one party can prove that it had no other practical choice but to agree), while a court will generally uphold a provision in a mediation agreement providing for proceedings to be confidential, exceptionally a mediator can be ordered to give evidence about what was said and done during a mediation if that is in the interests of justice.
As confidentiality is a key factor in mediation proceedings, the High Court ruling has prompted the Civil Mediation Council (CMC)to publish Civil Mediation Council Guidance Note: Mediation Confidentiality which provides practical advice on the issue and draws the following lessons from the judgment:
§ Mediation agreements should continue to specify that mediation proceedings are conducted on a “without prejudice” basis.
- § Mediation agreements should continue to make it clear that what is said during the mediation proceedings will be confidential.
- § If the parties agree that the mediator cannot be called to give evidence in court, this should not be drafted restrictively, as it was in Farm Assist.
Given the Farm Assist ruling, the CMC has suggested that external mediators and mediation providers might want to consider amending their mediation agreements to include a term requiring a party who seeks to call a mediator to give evidence, to indemnify the mediator for any costs incurred.
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