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
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