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Mediation Update - June 2009       © David Cornes        Republished with permission


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Mediator Fails to have Witness Summons Set Aside.

Judgment

Farm Assist Limited (In Liquidation) -v- The Secretary of State for the Environment Food and Rural Affairs (No. 2) - Technology and Construction Court - May 2009 - The Hon. Mr Justice Ramsey - [2009] EWHC 1102 (TCC). To read the judgment, click here.


Questions Quick Overview

In an action to set aside, on the grounds of economic duress, a signed written settlement agreement made in mediation, can the mediator be called to give evidence?

The mediator failed to have a witness summons set aside and the Judge decided that this was an exceptional case where the Mediator should give evidence (notwithstanding her saying she could remember nothing of the mediation and had retained very few documents).

The Detail  

In this case, Farm Assist Limited was seeking to set aside a settlement agreement entered into with the Defendant, DEFRA, on the grounds that the settlement was entered into under economic duress.

Initially, with the knowledge of the Court, the parties wrote a joint letter to the mediator seeking her assistance but she replied saying she doubted she could assist. DEFRA responded that they would still like to meet with her and take a witness statement. The Mediator replied referring to the terms of the Mediation Agreement entered into between her and the parties which provided that both parties had agreed not to call her as a witness; she stated that she did not believe that she could help and would not devote further time to the case unless required by the court to do so. DEFRA issued a witness summons and the mediator applied to the court to have that witness summons set aside.

As is usual, the Mediation Agreement had used the concepts of confidentiality, privilege and “without prejudice” communications to describe the status of communications made and information provided in relation to the mediation. The Judge considered each of those aspects separately, reviewing many important previous decisions and then concluded:

  • Confidentiality: The mediation is confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced. 
  • Without Prejudice Privilege: The mediation is covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
  • Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.

Both parties had agreed not to call the mediator as a witness “in relation to the Dispute”. The Dispute, as defined, was the dispute that was settled in mediation (ie the underlying dispute) not the dispute in these proceedings (ie alleged economic duress in the obtaining of the mediated settlement). The Judge decided that this provision was not a bar to calling the mediator to give evidence. Mediators are likely to revise their agreements in the light of this decision but, even so, the Judge said such a contractual provision would be a factor for the court to take into account in deciding whether, in the interests of justice, a mediator should be called as a witness and would not of itself necessarily prevent a mediator being called.

In deciding not to set aside the witness summons, the Judge took into account, inter alia:

  • Farm Assist and DEFRA had waived without prejudice privilege;
  • Farm Assist were relying in pleadings and witness statements on what happened at the mediation;
  • The Mediator had stated that she had no recollection of the mediation and, of course, since 2003 she had been involved in very many mediations as well as dealing with other matters as a partner in a City law firm;
  • The Mediator has an enforceable right to confidentiality under the express terms of the Mediation Agreement unless it is in the interests of justice that she should be called as a witness

and then decided that this was a case where the mediator should give evidence in response to the witness summons and he dismissed the application to set aside the witness summons.

This decision contains an interesting in depth review of the law relating to confidentiality and privilege in mediation that supports mediation. The decision was made in a case on exceptional facts and probably does not, for that reason, provide much scope for an argument that the decision is dangerous for mediation. However, a decision based on the generic phrase “in the interests of justice” to permit the calling of a mediator to give evidence may be open to use in further cases. In reality, however, there have always been exceptions to the “without prejudice” rule (see eg Unilever - v- Proctor and Gamble, [2000] WLR 2436) and this may turn out to be small extension to one of those already existing exceptions.


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