As is well known in the litigation world, the Civil Procedure Rules now expressly provide that the courts may make orders requiring the parties to “engage” in alternative dispute resolution processes such as mediation. In deciding costs orders, the court will also expressly consider “whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution” (Rule 44.2(5)(e)).
So what does “engage” mean in the context of mediation? Is it enough that the parties have booked the mediator, arranged the venue and turned up at the mediation? Or does it mean the court can go further, if asked, and consider whether or not a party has negotiated in good faith, made offers or acted reasonably throughout the mediation? I can see that it could be argued it means the latter. Surely “to engage” is to do so properly?
If so, what is the evidence that the parties can rely on to show that that other has not “engaged”. Can a court require the mediator to give evidence as to what occurred at the mediation? I certainly hope not, but what is the law?
Calling the mediator to give evidence
Mediation agreements contain various duties of confidentiality. In particular, the mediator is required not to disclose details of what happened at the mediation. The parties are also required to keep confidential what has gone on at the mediation (usually with some limited exceptions). Supplementing those confidentiality provisions, most mediation agreements contain a clause stating the parties cannot require a mediator to give evidence as to what occurred at the mediation. The Property Mediators’ mediation agreement contains the following clause: “The Parties will not require the Mediator (nor any assistant mediator or observer) to give evidence or produce records, notes or any other information or material whatsoever relating to the mediation in any context whatsoever. In particular, the parties will not require the Mediator (or assistant or observer) to disclose anything discussed in the private sessions with the other party, whether by application or otherwise.”
However, is this effective? This was the issue in Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC), where the mediation agreement contained the following clause: “None of the parties to the Mediation Agreement will call the Mediator as a witness… in any litigation… in relation to the dispute and the Mediator will not voluntarily act in any such capacity without the written agreement of all the Parties.”
The High Court judge held that the mediator had an enforceable right under the express terms of the mediation agreement which the parties could not waive. However, he also held that the right is not absolute. Notwithstanding the terms of the agreement, the court can require the mediator to give evidence if “it is in the interests of justice that she should be called as a witness” In Farm Assist (a duress case), weighing up various factors, the judge considered that the mediator should give evidence.
So, if on an application relating to costs one party argues that the other did not “engage” properly in the mediation, the court will have the power to order the mediator to give evidence “if it is in the interests of justice” to do so (at least according to the first instance decision in Farm Assist), notwithstanding the clause in the mediation agreement that says parties may not require the mediator to do so.
Interests of justice?
At the beginning of each mediation, we mediators, in different ways, emphasise the without prejudice rule and the confidentiality of the process. We do so in order to create a safe space in which the parties can trust the mediator and begin to trust each other. We seek to create a hermetically sealed process where the parties can go round in circles, say what they like and try out all sorts of ideas without worrying about it. Anything that interferes with all of that will have a deleterious effect on the process.
Hopefully, if the issue arises, the courts will come to the conclusion that “the interests of justice” in preserving the mediation process outweigh the ability of a party to use what happened at a mediation on a costs application.
Mediation privilege
Contrary to popular belief, there is as yet no meaningful concept of “mediation privilege” (see most recently The Pentagon Food Group Ltd v B Cadman Ltd [2024] EWHC 2513 (Comm)).
Other countries have grappled with this issue and dealt with it in the context of comprehensive legislation dealing with mediation. For example, section 10 of the Irish Mediation Act 2017 states: “All communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.”
There are of course exceptions set out in the legislation.
Perhaps it is time for the UK to create a fully thought-out concept of mediation privilege. It would make it clear that anything said at a mediation cannot be used outside the mediation, except in clearly defined and limited circumstances.
Gary Webber, Founding member of The Property Mediators
