Confidentiality is considered to be a core tenet of mediation. Indeed the confidentiality of mediation is one of its key advantages, as it ensures parties are able to talk freely without fear of prejudicing their future case in court, if they happen to end up there.
But as with any rule, there are exceptions. And mediators need to be aware of them!
Mediation Confidentiality - The General Rule
The general rule in court systems around the world is that nothing that is revealed by a party during the mediation process will be used in a court of law as evidence. In other words, everything said in mediation is subject to the common law concept of without prejudice privilege (or it’s civil law equivalent). Furthermore, a mediator will not be required to give evidence in court should the mediation process fail to result in an agreement.
If you want to hear a more detailed account of the laws of mediation confidentiality around the world, listen to this free chapter from Professor Nadja Alexander’s course on Mediation Law:
Check Your Privilege
However - as everyone knows - rules were made to be broken. The recent case of Ferster v Ferster in the UK Court of Appeal suggests the exceptions are wider than many would think.
The case revolved around a fierce dispute between three brothers about their respective interests in their online gaming business. The brothers attempted mediation during which it was suggested that one brother would buy out the other two, however they couldn’t agree on price. The mediator remained involved after the mediation as further offers were made.
One day, a letter was sent via the mediator from the law firm representing the two brothers. In it they claimed that the third brother had failed to disclose certain assets and demanded an increased sum as a result. Crucially, they threatened to ruin the third brother’s reputation by bringing criminal proceedings against both him and also against his life partner if the demands were not met.
In the event, the accusations proved to be unsubstantiated. The third brother wanted to lift mediation privilege and use this letter as evidence in subsequent proceedings.
The question for the court was whether there was “unambiguous impropriety” in the letter. This is a major exception to without prejudice privilege in the UK and applies to mediation as much as any other form of negotiations. On the facts, the letter was admitted as evidence. The fact that the threats were extended towards his family, were for financial gain and were aimed at things like his reputation, were especially persuasive.
Advice for Mediators
This is just one exception. There are many other circumstances where privilege could be lifted.
One important question this raises is whether it is necessary to explicitly warn the parties about these exceptions to confidentiality at the outset. Mike Talbot, founder of UK Mediation Ltd, provides a perspective on this important issue in this video:
So what do you think?
Is the law on this issue fair or should mediation be accorded a higher-level privilege?
What can mediators do about it apart from brushing up on their mediation law?
Put your thoughts in the comments box below.
Learn more about the peculiarities of Mediation Law and sign up to Professor’s Nadja Alexander’s full course on Mediation Law by clicking the big green button below: