Topic 9: Confidentiality and The Without Prejudice Rule in Mediation

TAHMIDUR RAHMAN
Topic 9
CONFIDENTIALITY AND THE WITHOUT
PREJUDICE RULE IN MEDIATION
tahmidur.rahman151@northsouth.edu University of London

TAHMIDUR RAHMAN
402 Topic 9 CONFIDENTIALITY AND THE WITHOUT PREJUDICE RULE IN MEDIATION
INTRODUCTION
In this topic, we are going to consider the rules relating to without prejudice and
confidentiality in mediation. You were first introduced to these rules in the ethics
topic (Topic 5). The concepts of without prejudice and confidentiality apply to all of
the non-adjudicative ADR processes, and the adjudicative ADR processes are also
confidential processes. These concepts are of particular importance to mediation.

TAHMIDUR RAHMAN
Topic 9 CONFIDENTIALITY AND THE WITHOUT PREJUDICE RULE IN MEDIATION 403
KEY CONCEPTS
This topic includes:
a review of how the without prejudice rule operates in relation to mediation
the circumstances in which the court will override the without prejudice rule in
mediation
the difference between the without prejudice rule and confidentiality in relation
to mediation
the circumstances in which the court will override confidentiality.

TAHMIDUR RAHMAN
TOPIC OBJECTIVES
After completing the study of this topic you should be able to:
9.1 describe the role of the without prejudice rule in the context of mediation
9.2 explain the circumstances in which the without prejudice rule may be overridden
in mediation
9.3 analyse the differences between the operation of the without prejudice rule and
the obligation of confidentiality in mediation
9.4 identify the circumstances in which the confidentiality rule may be overridden by
the courts in mediation
9.5 apply your knowledge so as to give accurate, fully reasoned solutions to legal,
factual and ethical issues that can arise in mediation.

TAHMIDUR RAHMAN
MINI LECTURE

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ESSENTIAL READING AND RESOURCES - 1

Now that you have watched the first mini lecture, you can read more in the Essential
reading for this topic.
Blake, S., J. Browne and S. Sime A practical approach to alternative dispute

resolution. (Oxford: Oxford University Press, 2018) 5th edition. Chapter 14
Mediation: general principles (paras 14.107 to 14.132).
All the Essential reading for this programme is provided for you. Click ‘next’ to go to
the next page and start reading.

TAHMIDUR RAHMAN
BLAKE CHAPTER 14: MEDIATION: GENERAL

PRINCIPLES
S. Blake, J. Browne and S. Sime, A practical approach to alternative dispute

resolution (Oxford University Press, 2018; 5th edition)
Q The Without Prejudice Rule in Mediation

14.107
The without prejudice rule and exceptions to it (see 6.52−6.61) apply to

communications passing between the parties made in the context of a mediation, so
these cannot be relied on or referred to in subsequent court proceedings if the
mediation is unsuccessful (Aird & Aird v Prime Meridian Ltd [2006] EWCA Civ 1866).
14.108
In Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002, the court accepted
that ‘if the integrity and confidentiality of the [mediation] process is to be respected,
the court should not know, and should not investigate, why the process did not
result in agreement’. The without prejudice rule will clearly apply to communications
aimed at settlement that take place between the parties before the mediation
agreement is signed, or before the mediation commences, as well as
communications that take place during the course of the mediation. The court also
cannot look at without prejudice material when considering costs following a case
that has settled on all issues except costs and in circumstances where the parties did
not waive the general rule by providing that the negotiations were without prejudice
‘except as to costs’ (Cammack v Gresham Pension Trustees [2016] EWCA Civ 655).
14.109
The without prejudice rule is often specifically stated in the mediation agreement
between the parties and is further strengthened by a confidentiality clause. The court
will uphold these clauses and grant an injunction to restrain a party from referring to
any part of the discussions that took place during the mediation (Venture Investment
Placement Ltd v Hall [2005] EWHC 1227 (Ch)). In Mason v Walton-on-Thames Charity &
others [2010] EWHC 1688 (Ch), the claimant sought permission, in advance of the
hearing of a preliminary issue, to rely on without prejudice communications that had
been produced in the course of mediation in order to oppose the position one of the
defendants adopted in the litigation. The court refused permission, first as no
exceptions to the exclusionary without prejudice rule applied and secondly the
claimant had contractually agreed, by a clause in the mediation agreement which
she had signed, to abide by the without prejudice confidential nature of the process.
14.110
In mediation, the following communications will be protected from disclosure by

operation of the without prejudice rule:
• any oral or written communications made specifically for the purposes of

settlement, such as position statements, correspondence about the mediation,
offers or concessions whether made before, during or after the mediation (Reed

TAHMIDUR RAHMAN
Executive plc v Reed Business Information Ltd [2004] 1 WLR 3026; Brown v Rice
[2007] EWHC 625 (Ch));
• any communications passing between the parties and the mediator before,
during or after the mediation with a view to exploring settlement;
• communications created for the purpose of trying to persuade the parties to

mediate (Instance v Denny Bros Printing Ltd [2000] FSR 869).
14.111
The rule will protect communications aimed at settlement which pass between the
parties themselves or between their respective lawyers and it is also likely to protect
communications passing between the parties and the mediator, Brown v Rice [2007]
EWHC 625 (Ch).
14.112
It will also operate to protect investigations carried out as part of the mediation
process. In Smiths Group plc v George Weiss (unreported, 22 March 2002), the agreed
mediation procedure provided for each party’s expert to meet with employees and
former employees with a view to establishing work done by them during a particular
year. The mediation was adjourned to enable this to be done. The persons
interviewed were told informally before each interview that the interview was
without prejudice and that the material would not be used in evidence. The
mediation failed to result in settlement and the issue before the court was whether
the claimant’s expert should be required to expunge accounts of his interviews with
the employees from his report. Despite finding that the interviews were part of the
fact-finding process and in no sense related to any attempt to settle the proceedings,
Mr Roger Kaye QC (sitting as a Deputy High Court Judge) accepted that these
interviews were protected by the without prejudice rule, and that the defendant’s
conduct was not such that they should be estopped from asserting the privilege.
Communications that are not protected by the without prejudice rule in mediation
14.113
Although there are few reported decisions in the context of mediation, in view of the
fact that there is no particular special category of ‘mediation privilege’, it is likely that
the exceptions to the without prejudice rule in general litigation (see 6.60−6.61) will
also apply in the context of mediation.
14.114
In mediation, the following communications will not be protected by the without

prejudice rule:
• open offers;
• offers that can be communicated to the court on the question of costs, after
issues of liability and remedies have been determined. If a party wishes to rely
on a document in relation to costs, then they should either mark the document
‘without prejudice except as to costs’ or make a formal offer under CPR Part 36. If
the offer is not accepted by the other party, and they fail to beat it at trial, then it
can be drawn to the attention of the court in order to persuade the court to
make an adverse costs order against that party. Unless both parties waive the
without prejudice privilege, the court cannot look at the documents or
correspondence when assessing costs in respect of a case that settles on all
issues except costs (Cammack v Gresham Pension Trustees [2016] EWCA Civ 655).

TAHMIDUR RAHMAN
However, the court can look at email correspondence setting out costs
information which was produced during a mediation if that correspondence was
made on a ‘without prejudice save as to costs’ basis (Savings Advice Ltd v EDF
Energy Customers plc (Senior Courts, 17 January 2017).
• communications that are not aimed at settlement of a dispute. Not all

documents produced at or prepared for a mediation will be protected by the
without prejudice rule. The rule will not protect documents that were not
created for the purposes of exploring settlement, such as statements of case or
contractual documents, documents relating to loss, accident report forms,
maintenance records, or any other documents of this nature that would have to
be disclosed during the course of litigation. It will also not apply to a joint
statement made following a meeting of the experts instructed by each party
that was created for use in the mediation, as such a statement is one that the
experts must produce if the court directs it under CCR 35.12 (Aird & Aird v Prime
Meridian Ltd [2006] EWCA Civ 1866).
14.115
If the without prejudice rule is abused (eg by a party making a threat about the
action they will take if an offer is not accepted during a mediation), then the court
will not allow a party to shield behind the rule and will order disclosure (Unilever plc v
Procter & Gamble [2000] 1 WLR 1436; Aird & Aird v Prime Meridian Ltd [2006] EWCA Civ
1866).
14.116
The court can look at communications that took place in a mediation to decide if the
mediation resulted in a concluded settlement. In Brown v Rice [2007] EWHC 625 (Ch),
an issue arose between the parties as to whether a settlement had been reached at
mediation, even though the terms had not been recorded by an agreement in
writing and signed by the parties. The ADR Group was given permission to intervene
in the proceedings. They submitted that nothing said or done in preparation for or at
mediation could be disclosed in the absence of impropriety by a party at the
mediation. They also submitted that the clause in a mediation agreement providing
that there was no agreement unless it was in writing and signed by the parties
prevented the court from looking at the events in the mediation to see if there was a
concluded settlement because this clause effectively removed that exception to the
without prejudice rule. The court rejected these submissions and held that the fact
that communications took place in the context of mediation did not provide the
communications with a special status. Mediation was simply a form of assisted
negotiation and so the usual exceptions to the without prejudice rule applied in the
context of mediation. The court could therefore look at the events in the mediation
to decide if there was a concluded agreement as an exception to the without
prejudice rule. Although the court accepted that an offer had been made and
accepted by the deadline on the day following the mediation, the absence of any
provision as to the manner of disposal of the litigation meant that the offer was
incomplete. The court also held that the clause in the mediation agreement requiring
there to be a written settlement, meant that any agreement reached between the
parties could not be completed until reduced to writing, unless that clause was
varied or waived or one party was not able to rely on it. The court therefore found
that no binding settlement had been reached.
14.117
As mediation increases, so too is there likely to be an increase in litigation arising out

of the mediation. There have been a number of recent cases in which the courts have

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considered what took place in mediation in an effort to determine whether

mediation resulted in a binding settlement:
• In AB v CD Ltd [2013] EWHC 1376 (TCC), the mediator was required to give
evidence, and to disclose notes he had made and communications received
from the parties from the conclusion of the mediation meeting until settlement
was reached by the parties some two weeks later, in order to assist the court to
determine whether the dispute had settled by agreement following the
conclusion of the mediation meeting. The court considered Brown v Rice [2007]
EWHC 625 (Ch), but distinguished it on its facts, and held that the mediation
ended when the defendant rejected the claimant’s offer, which had been left
open after the conclusion of the mediation meeting. As the further negotiations
after that date were not covered by the clause in the mediation agreement,
there was no need for the parties to enter into a written settlement agreement
signed by them before the settlement could be legally enforceable.
• The court also admitted evidence of what took place at a mediation in order to
determine whether a settlement agreement was binding on the parties in
Universal Satspace (North America) LLC v Kenya (QB), 20 December 2013 (unrep).
The parties reached a settlement at mediation, but the defendant requested a
21-day delay in signing the settlement agreement. The parties therefore made
an oral arrangement that they would sign the settlement agreement within that
period, Although the claimant signed it, the defendant did not do so. The
claimant then made an application to court to strike out the defence and
counterclaim, relying on the oral agreement to execute the settlement
agreement in the form that had been agreed at the mediation. Teare J held that
the oral agreement to sign the settlement agreement within a certain time
period was a collateral contract that could be enforced by the court. The
provision in the mediation agreement which provided that no settlement
reached in mediation would be binding unless and until it was reduced to
writing and signed by all parties did not apply, because it was concerned with
settlement of the underlying dispute, not a collateral agreement.
• In Barden v Commodities Research Unit (Holdings) Ltd [2013] EWHC 1633 (Ch), the
parties reached an agreement in mediation, and an issue arose whether that
agreement was inclusive or exclusive of tax. The claimant applied to the court
for payment of the balance of £673,000 which he claimed was due under the
settlement agreement, which the defendant, his employer, had deducted and
paid to HM Revenue and Customs. The court had to construe the agreement to
determine whether the settlement figure was inclusive or exclusive of tax. The
court ordered disclosure of the notes of the mediation. The parties and their
lawyers made witness statements describing the course of negotiations in the
mediation. The court considered the extent to which the communications
between the parties during the mediation were admissible as an aid to
construction of the settlement agreement. The court held that much of the
parties’ evidence surrounding their negotiations and mediation was not
admissible in considering the true construction of the settlement agreement. All
that was admissible was the factual matrix, which did not include the parties’
negotiations or subjective intent. Taking that into account, the construction of
the agreement was clear and the payment was to be made net of tax.
14.118
The mediation agreement itself is not protected by the without prejudice rule and it
can be produced to prove its terms (Brown v Rice [2007] EWHC 625 (Ch)).
14.119

TAHMIDUR RAHMAN
If all parties to the mediation waive privilege, the communications can be placed
before the court. In Cumbria Waste Management Ltd v Baines Wilson [2008] BLR 330, a
mediation took place between the claimant and DEFRA, which resulted in
settlement. The claimant then sued its former solicitors, Baines Wilson, for the
difference between its original claim and the settlement amount. The shortfall was
alleged to be due to their negligence in drafting the underlying substantive contract.
The solicitors (who did not act for the claimant in the mediation) sought disclosure of
communications in the mediation and argued that, by bringing the action against
them, the claimant had waived privilege and they needed to know what happened
during the mediation to assess the reasonableness of the settlement. The court held
that the court should support the mediation process by refusing, in normal
circumstances, to order disclosure of documents and communications that took
place within mediation. Mediators should be able to conduct mediations confident
that, in normal circumstances, their papers would not be seen by the parties or
others. The privilege belonged not only to the claimant but also to DEFRA. In the
absence of waiver of the privilege by DEFRA, the court could not order disclosure of
the communications within the mediation (see also Cammack v Ashby [2016] 1 March
2016 (CA) unreported).
A party who makes an application for indemnity costs on the basis that the other
party acted unreasonably in not responding to an offer to use ADR or discuss options
for settlement is not impliedly waiving privilege in without prejudice
correspondence. A party cannot rely on without prejudice correspondence in
support of such an application unless the privilege is waived by all parties
(Vestergaard Fransden A/S v Bestnet Europe Ltd [2014] EWHC 4047 (Ch)).
Can the mediator rely on the without prejudice rule?

14.120
The without prejudice rule exists for the benefit of the parties and it can be waived by
them. It is not a privilege of the mediator, so if the parties waive it, the mediator
cannot rely on it to prevent disclosure of communications arising out of the
mediation process or to justify a refusal to give evidence about such
communications. This is so even if the mediation agreement contains an express
provision as to the without prejudice nature of the mediation process (Farm Assist Ltd
(in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No 2)
[2009] EWHC 1102 (TCC)).
R Legal Advice Privilege in Mediation

14.121
Communications passing between a client and their lawyers made for the purposes
of giving or receiving legal advice are protected by legal professional privilege (3
Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB
1556). Legal advice privilege will also be upheld in mediation. In Farm Assist Ltd (in
liquidation) v Secretary of State for Environment, Food and Rural Affairs [2008] EWHC
3079, the claimant and the defendant settled the claim at mediation. The claimant
then brought separate proceedings against the Secretary of State seeking an order
that the settlement reached at mediation should be set aside on the grounds of
economic duress. The Secretary of State sought disclosure of documents covered by
legal advice privilege both before and during the mediation, consisting of advice
about the merits of the claim, the offers to be made during the mediation, and the
response to offers made by DEFRA. It was argued that privilege had been impliedly
waived by impeaching the settlement on the grounds of economic duress. The court
held that waiver of legal advice privilege could only occur in proceedings between

TAHMIDUR RAHMAN
the client and the solicitor, and that legal advice privilege was not waived by suing a
third party (DEFRA) in these circumstances.
S Confidentiality in Mediation
14.122
The mediation agreement will usually stipulate that neither party can reveal any
detail of the mediation process or any information obtained during the mediation
without the express consent of the other party. A confidentiality clause in the
mediation agreement amounts to a contractual promise on the part of all parties to
the contract, including the mediator, not to reveal communications made during the
mediation. An injunction can be obtained, in certain circumstances, to restrain
breach of this obligation (Venture Investment Placement Ltd v Hall [2005] EWHC 1227
(Ch)). Damages could also be claimed for any breach. Even in the absence of an
express confidentially clause, one is likely to be implied, because it would destroy the
basis of mediation if either party could publicize the matters that took place between
them and the mediator. The mediator also owes a duty of confidentiality to the
parties. A confidentiality clause adds weight to the without prejudice rule and it may
be wider than it.
14.123
In Aird & Aird v Prime Meridian [2006] EWCA Civ 1866, the court accepted that a
confidentiality clause reinforces the without prejudice rule. However, May LJ went on
to state:
This cannot of course be taken literally, since it would obviously not apply to
documents produced for other purposes which were needed for and
produced at the mediation, for example their building contract or the
antecedent pleadings in the proceedings . . . . but the general intent of the
provision is clear, and it accords with the generally understood ‘without
prejudice’ nature of mediation.
14.124
Unless the mediation agreement provides to the contrary, the mere fact that the
parties have agreed to try and resolve the dispute by mediation or have had a
mediation hearing is not confidential; the confidentiality therefore attaches to the
events during the mediation process, rather than the bare fact that the parties are
about to or have embarked on mediation.
Example of a confidentiality clause

14.125
Any information, whether written or oral, which is disclosed to a mediator in private

will be treated as confidential by the mediator and will not be disclosed to any other
party to the dispute or any person whatsoever or to any judge, court, or tribunal
unless:
• the party making the disclosure agrees that it should be disclosed;
• the law requires the mediator to disclose the confidential information;
• the mediator believes there is a serious risk to the life or safety of any person if
disclosure is not made.

TAHMIDUR RAHMAN
The parties and the mediator also agree that they will not disclose any information
arising out of or in connection with mediation, including the facts and terms of
settlement, unless they are compelled by law to do so or except insofar as it is
necessary to enforce any settlement agreement.
Information given to the mediator

14.126
Any information given to the mediator during the process and in particular anything
revealed to him during the private meetings of the parties is protected by the
confidentiality obligation. The mediator cannot reveal this information to the other
side or any other party unless the party providing the information expressly
consents. The duty of confidentiality will apply even after the mediation process has
been completed or terminated.
Can the mediator enforce the confidentiality clause?

14.127
The without prejudice rule exists for the benefit of the parties and it can be waived by
them. It is not a privilege of the mediator, and cannot be relied on by him. However,
the express or implied term of confidentiality is different. The court in Farm Assist Ltd
(in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No 2)
[2009] EWHC 1102 (TCC) accepted that the express (or implied) obligation of
confidentiality exists not just between the parties themselves, but also between the
parties and the mediator, and so it could only be waived by them all.
14.128
In Farm Assist, the claimant sought to set aside an agreement reached with the
defendant at the mediation on the basis of economic duress. Both parties waived the
without prejudice privilege and confidentiality in the mediation. A witness summons
was issued against the mediator, requiring her to attend court to give evidence about
the entire events of the mediation, including private conversations she had with each
party. The mediator applied to set the summons aside, relying on the confidentiality
provision in the mediation agreement. The mediation agreement also provided that
the parties would not call the mediator as a witness in any litigation. The court held
that confidentiality can be waived but only by the consent of all parties. The claimant
and the defendant could not waive confidentiality so as to deprive the mediator of
her right to have the confidentiality of the mediation preserved. The court accepted
that the mediator has an express enforceable right to keep matters confidential
under the terms of the mediation agreement. However, it went on to hold that the
obligation of confidentiality is not absolute, and the court has power to permit
evidence of confidential communications to be given or produced if it is in the
interests of justice to do so.
When will the court override the confidentiality provisions in the interests of
justice?
14.129
It seems likely that the court will override the confidentiality provisions in the
absence of agreement by all parties only in exceptional cases:
• In Farm Assist, the court did override confidentiality because it was necessary for
the court to ascertain what was said and done at the mediation in order to

TAHMIDUR RAHMAN
determine whether the agreement reached at the mediation should be set aside
for economic duress.
• The interests of justice are also likely to require confidentiality to be overridden

by the court if one party is seeking to vitiate an agreement reached at the
mediation on the grounds of undue influence or misrepresentation.
• The court is unlikely to allow a mediator to rely on a confidentiality clause so as

to prevent the parties from revealing advice given by him during the mediation
in respect of any action against him for breach of contract or negligence.
• The court is also likely to override the confidentiality and without prejudice
nature of mediation in order to determine a professional negligence claim
against solicitors arising out of their conduct of a claim which was settled at
mediation or arising out of their conduct at the mediation − see Youlton v
Charles Russell [2010] EWHC 1032 (Ch).
• The court is unlikely to allow the duty of confidence imposed on all parties by
mediation to be used to suppress information which is relevant to an
assessment of the costs of the substantive claim following a settlement. Any
costs information given in a mediation is likely to be admissible if the court is
required to work out the costs consequences of any subsequent settlement. In
such a case, the costs information, in the form of statements of fact, could be
separated out from the other information stated for the purposes of negotiating
a settlement (Savings Advice Ltd v EDF Energy Customers plc, Senior Courts, 17
January 2017).
14.130
To permit confidentiality to be overridden in anything other than in very exceptional

and limited circumstances will seriously undermine the mediation process. In view of
the strong promotion of mediation by the judiciary, this is unlikely to happen.
Other exceptions to confidentiality

14.131
Confidential information may have to be disclosed by the mediator in some

circumstances. These exceptions may also be spelt out in the mediation agreement:
• where disclosure is required by law, for example where disclosure is required

under the Proceeds of Crime Act 2002, or the HM Revenue and Customs
exercises its statutory powers to compel disclosure. The CMC has prepared a
guidance note on the obligations of mediators under the Proceeds of Crime Act
2002, which can be downloaded from www.civilmediation.org
;
• to prevent risk of harm to the public at large;
• if the mediator believes there is a risk of significant harm to the health, life, or
well-being of a person or a threat to their safety if confidential information is not
disclosed. This can arise particularly in a family mediation concerning children;
and
• if disclosure is necessary to prevent criminal activity, or prevent the mediator

being charged with colluding in the commission of an offence or if a failure to
disclose the confidential information may amount in itself to a criminal offence
on the part of the mediator.

TAHMIDUR RAHMAN
14.132
Following Farm Assist (No 2), the Civil Mediation Council issued Guidance Note No 1
‘Mediation Confidentiality’, which can be downloaded from its website at
www.civilmediation.org
.
Blake, Browne and Sime. Original materials from A practical approach to

alternative dispute resolution © copyright 2018 Oxford University Press.
By permission of Oxford University Press. All rights reserved.

TAHMIDUR RAHMAN
ESSENTIAL READING AND RESOURCES - 2

Now read the second Essential reading for this topic:
Briggs, J. ‘Mediation privilege? Part one’, New Law Journal 159(7363) 2009, p.506.
Briggs, J. ‘Mediation privilege? Part two’, New Law Journal 159(7364-5) 2009,
p.550.
Remember that all the Essential reading for this programme is provided for you. Click
the link which will take you to the LexisLibrary
page of the Online Library where you can log into LexisLibrary, and search for the
readings.
For further assistance see the Online Library guide to Essential reading for ADR.

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TOPIC 9 − SELF-ASSESSMENT EXERCISE - 1

Attempt the following exercise. If you have understood the reading you should be
able to answer the question competently.
Feedback is available, but try to answer on your own first. Your response won’t match
the feedback exactly, but you should compare your performance with it and consider
whether you took all the relevant factors into account. Rate your performance
honestly. If you haven’t performed as well as you hoped, you may need to go over
parts of the Essential reading again.

TAHMIDUR RAHMAN
TOPIC 9 − SELF-ASSESSMENT EXERCISE - 2

Attempt the following exercise which follows on from Self-assessment exercise 1.
Feedback is available, but try to answer on your own first. Your response won’t match
the feedback exactly, but you should compare your performance with it and consider
whether you took all the relevant factors into account. Rate your performance
honestly. If you haven’t performed as well as you hoped, you may need to go over
parts of the Essential reading again.

TAHMIDUR RAHMAN
TOPIC 9 - QUICK QUIZ

If you feel ready, please attempt the following quiz. Don’t worry if there are some
questions you can’t answer − you can always try again later.

TAHMIDUR RAHMAN
REFLECTIVE ACTIVITY
Refer to the second Essential reading. Do you think Briggs LJ was correct in
arguing that there should be a special type of privilege covering ‘mediators’
secrets’? Why?
Give reasons for your answer.

TAHMIDUR RAHMAN
TOPIC SUMMARY
Mediation is protected by the without prejudice rule because the whole point of
mediation is to try to reach a settlement. The without prejudice protection can be
lost if it is waived by all of the parties or if one of the other exceptions apply. If the
parties waive without prejudice protection, the mediator cannot insist on it being
retained, because it is a rule that exists only for the benefit of the parties.
Confidentiality, on the other hand, is a rule that exists for the benefit of all of those
involved in the mediation, including the mediator. It protects all communications
that take place, before or in connection with the mediation, including the
communications that take place between the mediator and each party privately in
closed meetings during the mediation.
This puts the mediator in a very powerful and unique position and Briggs LJ has
argued that communications between the party and the mediator ought to be
protected by a special form of privilege (much like lawyer/client communications are
protected by a special form of privilege known as legal advice privilege).
The court, in domestic situations, can override confidentiality where it is in the

interests of justice to do so. In EU mediations, the test for overriding confidentiality is
different and we will look at this in Topic 12.

TAHMIDUR RAHMAN
FURTHER READING AND RESOURCES

Further reading will deepen your understanding in some areas but it is not required
in order to pass the module. You may wish to consult the reading suggested here or
others that you find, but please note that we cannot guarantee that Further reading
will be accessible to you and we do not undertake to supply it. Any Further reading
available via the Online Library is denoted using (OL).
Brown v Rice [2007] EWHC 625
Farm Assist (in Liquidation) v Secretary of State for the Environment, Food and Rural
Affairs [2009] EWHC 1102 (TCC)
Tumbridge, J. ‘Mediators: Confidentiality and compulsion to give evidence −

issues in England’, International Company and Commercial Law Review 21(4)
2010, pp.144−8. (OL
)
URLs given on this page were checked at the time of publication but will not be
maintained. If a link to a Further resource is no longer working, use the bibliographic
information to search for the item using a good search engine. The University of
London cannot take responsibility for pages maintained by external providers.

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PROGRESS LOG
We recommend that you now complete your topic progress log. This should allow
you to monitor and assess your progress and your understanding of the topic before
you move on.

TAHMIDUR RAHMAN
Topic Topic objectives How confident are you?
Completely Partially Unsure

confident confident
Topic 9: Confidentiality 9.1 Describe the role of the

and the without without prejudice rule in the
prejudice rule in context of mediation.
mediation
9.2 Explain the circumstances in

which the without prejudice rule
may be overridden in mediation.
9.3 Analyse the differences

between the operation of the
without prejudice rule and the
obligation of confidentiality in
mediation
Date 9.4 Identify the circumstances in
which the confidentiality rule may
be overridden by the courts in
mediation.
9.5 Apply your knowledge so as

to give accurate, fully reasoned
solutions to legal, factual and
ethical issues that can arise in
mediation.

Topic 9: Confidentiality and The Without Prejudice Rule in Mediation

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TAHMIDUR RAHMAN

tahmidur.rahman151@northsouth.edu University of London

402 Topic 9 CONFIDENTIALITY AND THE WITHOUT PREJUDICE RULE IN MEDIATION

tahmidur.rahman151@northsouth.edu University of London