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Mediation Update - May 2008       © David Cornes        Republished with permission

For a list of cases by date, click here.
For a list of cases by subject, click here.
For an alphabetical list of cases, click here.

Privilege and Confidentiality in Mediation


Cumbria Waste Management Limited, Lakeland Waste Management Limited and Baines Wilson (a Firm) - 16 April 2008 - High Court - Her Honour Judge Frances Kirkham (as a High Court Judge) - [2008] EWHC 786 (QB). To read the judgment, click here.

Questions Quick Overview

Will a court order disclosure of mediation papers on the application of a party which was not involved in the mediation, in circumstances where one party to the mediation objects to disclosure?

Do mediators have privilege in their own papers?

Where, in litigation with a party to a preceding mediation,

  • a party, who was not a party to the mediation, seeks a court order for disclosure of mediation papers (relevant in the litigation as to the reasonableness of the mediated settlement and hence mitigation of loss), and
  • a party to the mediation, who is not involved in that subsequent litigation, objects to disclosure,

it is unlikely that disclosure will be ordered.

However, the position may be different where the party objecting to disclosure was not only a party to the mediation but is also the claimant in the litigation (at least where there was no express agreement as to privilege).

Although not a binding part of the decision, in normal circumstances, mediator’s papers should not be seen by the parties or others.

The Detail  Footnotes

In two separate mediations, Cumbria and Lakeland had settled disputes with the Department for Environment, Food and Rural Affairs ("DEFRA"). Those disputes related to agreements for the provision of waste management services during the foot and mouth epidemic in 2001. In later proceedings, they sought to recover more money from their solicitors, Baines Wilson, alleging negligence in connection with the drafting and negotiation of the agreements with DEFRA. Baines Wilson wanted the court to order disclosure of documents created in the two mediations which they said went to the reasonableness of the mediated settlements. Baines Wilson was not a party to the mediations. DEFRA refused to consent to Baines Wilson seeing the documents and DEFRA, although not a party to the litigation, made submissions at the court hearing.

Baines Wilson relied on the Court of Appeal decision in Muller v Lindsay & Mortimer ([1996] 1 PNLR 74) Baines Wilson relied on the Court of Appeal decision in Muller v Lindsay & Mortimer ([1996] 1 PNLR 74). In that case, the plaintiffs were in dispute with shareholders of a company. Settlement was agreed in without prejudice negotiations (not mediation). They then claimed damages for negligence from their former solicitors. The solicitors asserted that the settlement had not been a reasonable attempt by the plaintiffs to mitigate loss and applied for disclosure of the documents relating to it. The Court of Appeal ordered disclosure. This created an exception to the without prejudice rule.

In Cumbria, the Judge was not persuaded that Baines Wilson was in the same position as the solicitors in Muller so she did not order disclosure. She said:

“The circumstances in Muller are different from those which obtain here. In that case, it was the plaintiffs who sought to deny disclosure of without prejudice material. Here, the question is whether a third party's without prejudice material should be disclosed. The Court of Appeal in Muller gave no consideration to the position of a third party. In this case, the privilege belongs not only to the claimants but also to DEFRA. There are public policy reasons why DEFRA should be entitled to assert that privilege: DEFRA are entitled to protect from disclosure material which may embarrass them in other disputes. Further, in this there was express (not just implied) agreement between the claimants and DEFRA that the without prejudice rule apply. There is clear public policy to encourage mediation in place of litigation. The court should be slow to find exceptions to the without prejudice rule.”

Further, the Judge did not agree with Baines Wilson’s submissions on confidentiality.

“In my judgment, whether on the basis of the without prejudice rule or as an exception to the general rule that confidentiality is not a bar to disclosure, the court should support the mediation process by refusing, in normal circumstances, to order disclosure of documents and communications within a mediation.”

In relation to the position of mediators and privilege, she added:

“I note that the disclosure sought by the defendant is of such wide scope that it would include documents held by the mediator. In my judgement, the court should be very slow to order such disclosure. Mediators should be able to conduct mediations confident that, in normal circumstances, their papers could not be seen by the parties or others.”

That part of the decision is not binding precedent, but it lends some support to an idea occasionally expressed that mediators may themselves have privilege in their own papers that cannot, in normal circumstances, be waived by the parties.

Cumbria is a robust decision supporting the privilege and confidentiality of mediation. On the other hand, it represents a fine distinction with the approach in the superior court in Muller. It is clear that issues of privilege and confidentiality now appear quite often before the courts. Although Judges are giving decisions that are supportive of mediation, is it time to look for legislation on mediation privilege and confidentiality?

An opportunity for that has now arisen. The EU Mediation Directive1 was adopted by the European Parliament on 23 April 2008. It has to be implemented in member states within 36 months (except for Denmark which has opted out), ie by 21 May 2011. Although the Directive applies only to cross-border mediation, it states in terms that nothing in it prevents member states from also applying it to internal mediation. Article 7 of the Directive provides for confidentiality; those provisions could be built on for the domestic UK legislation necessary as a result of the Directive. The time is right for the UK government to look at doing just that with input from mediators, users of mediation and the Judiciary. The commitment to mediation of many senior members of the Judiciary2 in England and Wales makes the prospect of judicial support more likely.

1 Click here for the EU Directive and click here for the EU Press Release about it.

See: "Alternative Dispute Resolution: An English Viewpoint" - A Speech by The Lord Chief Justice, in India on 29 March 2008 (click here) and "The Future of Civil Mediation" - A Speech by the Master of the Rolls, at the Civil Mediation Council Conference on 8 May 2008 (click here)

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