Protecting mediation evidence—disclosure and inspection
Protecting mediation evidence—disclosure and inspection

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

  • Protecting mediation evidence—disclosure and inspection
  • Scope of the protection against disclosure and inspection of mediation evidence under CPR 78.26
  • Applying to protect mediation evidence from disclosure or inspection under CPR 78.26
  • Making the application
  • Serving the application
  • Evidence in support of the application
  • The effect of the protection from disclosure and inspection under CPR 78.26
  • Practical tips for protecting mediation evidence under CPR 78.26

Brexit: The UK's departure from the EU on exit day, ie Friday 31 January 2020, has implications for practitioners considering settlement through mediation. For guidance, see: Cross border considerations—checklist—Settlement—Brexit specific and Cross border considerations—checklist — Brexit—impact on CPR.

For guidance, see Practice Note: Brexit—settlement [Archived].

This Practice Note sets out how to apply for disclosure or inspection of mediation evidence under the control of the mediator or mediation administrator under CPR 78.26. It covers the evidence in support and how to serve the application. It also addresses the effect that CPR 78.26 has on other CPR provisions including Part 31 and offers some practical tips in different scenarios.

Scope of the protection against disclosure and inspection of mediation evidence under CPR 78.26

CPR 78.26 sets out the procedure involved when seeking disclosure or inspection of mediation evidence which is in the control of a mediator/mediation administrator.

CPR 78.26 only applies to the mediation of cross-border disputes and that there are exceptions to its application to certain types of dispute (revenue, customs, administrative matters and State liability), see Mediation Directive and CPR 78 Section III. For the position regarding purely domestic mediations, see Mediation—confidentiality and privilege. More generally see Privilege—general principles, Privilege—types of privilege and Without prejudice communications.

Relevant definitions include:

  1. Mediation evidence—evidence arising out of or in connection with a mediation process (CPR 78.23(2))

  2. Mediator—any third person who is asked

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