Mediation—confidentiality and privilege

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Mediation—confidentiality and privilege
  • Mediation and privilege
  • Mediation—exceptions to the without prejudice rule
  • Confidentiality clauses and mediation
  • Confidentiality and the mediator
  • Cross-border mediations

Mediation—confidentiality and privilege

Confidentiality is particularly important in the context of mediation to enable parties to participate fully. Mediations are covered by two different levels of confidentiality:

  1. one covering all that is said or happens during the mediation

  2. the other covering the separate private meetings between each party and the mediator

It is worth noting that confidentiality does not normally cover the existence of the mediation, either party and the mediator may refer to the fact that mediation is going to take place/has taken place, without revealing the substance of the discussion.

In addition there are two different types of confidentiality to consider:

  1. common law without prejudice privilege—as mediations are attempts to settle the dispute, and

  2. confidentiality clauses in the mediation agreement

For guidance with regard to confidentiality in online (remote access) mediations, see Q&A: How do I secure and maintain privacy in a remote access mediation?

Mediation and privilege

Although Rush & Tompkins v GLC was not a mediation case, it is authority for the general common law rule that the ‘without prejudice’ rule:

‘is a rule governing the admissibility of evidence and is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish … The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always

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