Mediation privilege?

Date: 10 April 2009
Issue: Vol 159, Issue 7364
Categories: Features, Procedure & practice, Public

Part two: Mr Justice Briggs proposes a possible solution for ensuring the mediation process is confidential

The first part of this article (NLJ, 3 April 2009, p 506) identified a gap between the general perception that the mediation process affords complete confidentiality to the participants, and the more limited protection thus far conferred by the courts on mediation by reference to the without prejudice principle. This second part suggests a possible solution to the problem, and the means whereby it might be achieved.

Starting point

The starting point is to identify what is special about the process of “assisted without prejudice negotiation” called mediation. Looked at from the outside, (and in particular from the perspective of a judge called upon to determine a dispute previously made the subject of an unsuccessful mediation) the mediation process may appear to have little that is special about it, beyond the frank exchange of views between the parties which frequently occurs within without prejudice negotiations.

Viewed from inside however, the picture is rather different. True it is that the mediator will act as a conduit for the sharing of such information between the parties as is commonly shared in without prejudice negotiations: (shared information). But an important part of the mediator's facilitative role is to encourage the parties to share with him or her information, views, hopes and fears about the dispute which the party communicating them does not wish the other party to know, and which the mediator agrees to keep secret from the other party (mediator secrets). By that process the mediator becomes uniquely appraised of aspects of the parties' attitudes to the dispute (such as, but by no means limited to, their respective bottom lines) which may enable him or her to promote a compromise route which would not occur to either of the parties, and which sufficiently meets their different (secret) concerns, to be able to form the basis of a durable settlement. The ability of a mediator to receive mediation secrets from the opposing parties without communicating them across the divide, and to use the knowledge thereby gained in assisting the parties towards a settlement, is unique to mediation as a dispute resolution process, and an important part of its success to date in sparing the parties the time, stress and enormous cost of pursuing their disputes to a judgment. Put in the language of legal professional privilege, it enables the parties separately to unburden themselves to the mediator, so as to receive assistance which would be otherwise unavailable to them.

In concluding that confidentiality is afforded to the mediation process only by the without prejudice principle, or by contract with similar consequences, none of the decisions to that effect have recognised or taken account of this unique feature, nor of the risk that by applying to mediation the recognised exceptions to the without prejudice principle, the parties' readiness to share mediator secrets with the mediator may be seriously impaired, once the existence of those exceptions to mediation confidentiality is generally understood. Thus far, perception of this problem may not yet have spread much beyond the small community of professional mediators. Furthermore, in both Brown v Rice and Patel [2007] EWHC 625 (Ch) and Cattley v Pollard [2007] 2 All ER 1086 the disclosure successfully obtained related to Shared Information rather than mediator secrets. It is no part of the purpose of this article to suggest that they were wrongly decided on their particular facts.

Public interest

Legal professional privilege is justified by the public interest that parties to disputes should be able to unburden themselves with absolute frankness to their legal advisers. The same public policy may justify a similar privilege, not extended to mediators in respect of everything they learn in a mediation (as is implied by Art 7 of the Mediation Directive 2008/52/EC), but strictly limited to Mediator Secrets, as defined above.

Such a “mediator secrets privilege” would not be likely to interfere with the application to Shared Information in mediation of the recognised exceptions to the without prejudice principle, as occurred in both Brown and Cattley. Nor should it. Mediation is, at the broadest level of generality, a process designed to bring about contracts between fallible human beings, and it is therefore inherently subject to the ordinary failings which lead to misrepresentation, fraud, duress and undue influence, like any other contract-making process. Further, since there is no legal requirement that a mediated agreement must be in writing, it is also a process inherently susceptible to uncertainties as to whether a binding agreement has been made, and written agreements are vulnerable to mistakes which may call for rectification. In multi-party disputes, mediated settlements between some of them may frequently affect the rights of parties to the dispute who did not participate in the mediation. Those aspects of the rule of law must continue to govern the conduct of the participants in a mediation, and be capable of just determination by reference to what took place during a mediation, where necessary. For all those purposes, the exceptions to the without prejudice principle provide the court with the necessary windows into the mediation process, through which to appraise, and then determine, disputes of that type. It is hard to envisage why the determination of any of those disputes would be assisted by the disclosure of mediator secrets (as defined above) save perhaps in the very rare case of misconduct by the mediator, for which an appropriate exception to mediator secret privilege could be identified.

If that is an appropriate solution to the problem, the question remains: how is to be achieved? It is not, with respect, achieved by Art 7 of the Mediation Directive, because that affords a level of privilege to the mediator which would prevent him or her being called as a witness in relation to Shared Information relevant to the determination of disputes of the type which should lift the veil on mediation confidentiality by reference to the without prejudice principle. If for example it is just that the mediation process should be examined to ascertain whether an agreement was vitiated by misrepresentation, the mediator would be, in many cases, the best witness of the relevant facts. Furthermore, in affording privilege only to the mediator, Art 7 says nothing about the question whether a party to a mediation could be compellable to disclose a mediator secret, even if the mediator would not. In short, the Art 7 solution goes in one respect too far, and in the other respect not far enough. To the extent that it goes too far, this is a burden which must be borne, but only in relation to cross border mediation. To the extent that it goes not far enough, Art 7(2) preserves the ability of member states to make good the shortfall.

Legislation may well be an unattractive route for the implementation of this solution. Primary legislation would probably be necessary. Parliamentary time is not easily found and, where as so often occurs in a new field, the legislation is less than ideal first time round, Parliamentary time for its amendment is even more scarce.

Can the common law provide the solution?

Mediators like accountants plainly fall outside the protection of legal professional privilege, which attaches to communications between lawyers and their clients by virtue of the status of the lawyer as such, rather than merely because a person is giving legal advice. There is at present no separately recognised, still less regulated, profession of mediator.

The common law has however quite recently recognised a distinct form of non-status based privilege, in connection with matrimonial conciliation relating to children: see Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231 at 238. Again, it is plainly not of itself sufficient to supply the present deficiency, but it may point the way to the ability of the common law to recognise a new form of privilege, where, in a new context, the public interest so requires. This possible route to the recognition of a special privilege for mediation was touched upon in Brown, but not pursued.

All forms of privilege derive ultimately from a perception that the public interest in the maintenance of confidentiality in relation to particular forms of communication outweighs the competing public interest in the provision to a competent court of all information necessary for the just determination of a dispute. There is in principle therefore good reason why the courts should now recognise that the undoubted public interest in facilitating the process of mediation as a desirable and often preferable means of dispute resolution, by comparison with the full panoply of a trial, justifies the identification of a narrow form of mediator secret privilege of the type described above. There is no reason why a party to a mediation should not be encouraged to be as frank with the mediator as with his or her legal adviser. The similarity with the underlying justification for legal professional privilege is therefore very close.

It is to be hoped that an occasion will arise before the deadline imposed for the implementation of the Mediation Directive when a court will be enabled to determine, after the hearing of full argument, whether a present shortfall in the protection afforded to the confidentiality of the mediation process should be remedied by the recognition of a new common law privilege, tailored to this new dispute resolution process. If not, there may be no alternative to the intervention of statute.

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