Q&As

Where the parties to a divorce have attended mediation relating to financial matters, will a letter marked as an ‘open letter’ referring to the without prejudice discussions at mediation, and to the contents of a letter marked without prejudice, be admissible should the matter proceed to court?

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Published on LexisPSL on 21/11/2017

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Where the parties to a divorce have attended mediation relating to financial matters, will a letter marked as an ‘open letter’ referring to the without prejudice discussions at mediation, and to the contents of a letter marked without prejudice, be admissible should the matter proceed to court?

Mediation is a process by which an independent qualified mediator works with a couple to help them come to a mutual agreement. One of the main features of mediation is a distinction drawn between financial information (which is open) and negotiations (which are without prejudice). This is to enable options to be explored freely without concern that the discussions may be used in any court proceedings. The open information can be commuted into the court process if the mediation breaks down to avoid the duplication of costs.

If parties decide they wish to be engaged in the mediation process, and the mediator agrees that it is suitable, the parties will then go through the agreement to mediate (see Precedent: Agreement to mediate: BFLS 6E [21004]) and everybody will sign it—this is a contract that effectively governs the mediation process. The Agreement to mediate Precedent states (at para [9]):

‘Conversations, any communication and information about possible options, proposals and the terms of any financial settlement are on a ‘without prejudice’ basis, which means they cannot be referred to in court (except by order of the court or where the law imposes an over-riding obligation of disclosure on a mediator). Also, an ‘evidential privilege’ will ordinarily apply for all attempts to resolve issues in the mediation. This allows you both to be able to share ideas and proposals

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