MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”

In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation.

“Parties must be free to discuss candidly all options for settlement and ‘think the unthinkable’ without fearing that their words will be used against them in any subsequent litigation”

THE CASE

There was a dispute in relation to child arrangements between two parents.  A mediation took place. The father proposed to rely on matters that took place in the mediation, this was opposed by the mother.

THE DECISION

The judge decided that the father’s application did not come within one of the limited exceptions for waiver of the confidentiality that attached to mediation.

1. 1. There is some complexity to this area of law. There is also overlapping terminology through the use of phrases such as ‘mediation privilege’, ‘the without prejudice rule’ and ‘confidentiality’, which appear on occasions to be used interchangeably but can refer to different legal principles.

1. 1. The leading authority remains the case of Unilever plc v The Proctor & Gamble co [2000] 1 WLR 2436. That case involved assertions said to have been made in a ‘without prejudice’ meeting concerning a patent dispute. I note that the composition of the Court of Appeal included Wilson J, as he then was.

1. 1. In his leading judgment, Robert Walker LJ referred to the well-known passage from the House of Lords decision in Rush & Tompkins Ltd. v. Greater London Council [1989] AC 1280, 1299, where Lord Griffiths had said

“The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish… The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.”

1. 1. As Robert Walker LJ identified, the rule rests firmly on the public interest in encouraging parties to negotiate and settle their disputes out of court. However, he made a separate point, at p.2444, where the ‘without prejudice’ communications consist not of letters but of “wide-ranging unscripted discussions during a meeting which may have lasted several hours”:

“At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterised as threats or as thinking aloud) about future plans and possibilities. As Simon Brown L.J. put it in the course of argument, a threat of infringement proceedings may be deeply embedded in negotiations for a compromise solution. Partial disclosure of the minutes of such a meeting may be, as Leggatt L.J. put it in Mulkr v. Linsley & Mortimer [1996] PNLR 74, 81, a concept as implausible as the curate’s egg (which was good in parts).”

1. 1. It is this reality, as raised in the course of argument in the present case, which no doubt underpins Ms Gilmore’s suggestion that it may well be necessary to obtain a witness statement from the mediator as well as disclosure of her notes.

1. 1. Robert Walker LJ identified in Unilever at p.2444 to 2446 a number of exceptions to the ‘without prejudice rule’. These include, for example, where the court needs to examine the communications to decide whether a concluded agreement has been reached and the different rule that applies to an offer made ‘without prejudice as to costs’.

1. 1. A further exception to the ‘without prejudice rule’ identified by Robert Walker LJ is what he termed to be ‘a hybrid species of privilege’ in cases involving ‘matrimonial conciliation’.

“In matrimonial cases there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation: see In re D. (Minors) (Conciliation: Disclosure of Information) [1993] Fam. 231, 238, where Sir Thomas Bingham M.R. thought it not “fruitful to debate the relationship of this privilege with the more familiar head of ‘without prejudice’ privilege. That its underlying rationale is similar, and that it developed by way of analogy with ‘without prejudice’ privilege, seem clear. But both Lord Hailsham of St. Marylebone and Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 226, 236 regarded it as having developed into a new category of privilege based on the public interest in the stability of marriage.”

1. 1. In re D. (Minors) (Conciliation: Disclosure of Information) [1993] Fam. 231 was a case concerning a statement made by a conciliator (a mediator) about meetings held with the mother and father in proceedings under the Children Act 1989. The judge at first instance decided that the statement should be excluded from evidence and the mother appealed. The Court of Appeal upheld the decision of the judge. Sir Thomas Bingham MR emphasised the strong public policy imperative that lies behind the exclusion of such evidence when parties are negotiating arrangements for their children, “unless parties can speak freely and uninhibitedly, without worries about weakening their position in contested litigation if that becomes necessary, the conciliation will be doomed to fail” (at p.239).

1. 1. In his conclusions, at p.241, Sir Thomas Bingham MR made reference to “the special regard which the law has for the interests of children”. He said,

“In our judgment, the law is that evidence may not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child.”

1. 1. He then emphasised a further safeguard to protect the sanctity of conciliation or mediation,

“Even in the rare case which falls within the narrow exception we have defined, the trial judge will still have to exercise a discretion whether or not to admit the evidence. He will admit it only if, in his judgment, the public interest in protecting the interests of the child outweighs the public interest in preserving the confidentiality of attempted conciliation.”

1. 1. It is therefore clear from the dicta of Robert Walker LJ in Unilever that the reference to a special or hybrid privilege in negotiations concerning arrangements for children is well recognised. It falls within and not outside the analysis in that case. It is not an exception, as such, to the more general protection offered to ‘without prejudice’ communications. It operates to extend the protection offered to such communications, not to restrict it. It provides not only a ‘narrow exception’ requiring that disclosure be necessary because that communication clearly indicates that a person has caused or is likely in the future to cause serious harm to a child, but then an overriding discretion to be exercised, in any individual case, by balancing the interests of the child against the public interest in preserving the confidentiality of mediation.

1. 1. The obiter observations of Williams J in Re D (A Child) (Hague Convention: Mediation) [2017] EWHC 3363 (Fam) [2018] 4 WLR 45 fit neatly within this analysis. At paragraph 8 of his judgment Williams J said:

“I would say that I consider there is a strong argument for holding that mediation in the context of 1980 Hague Convention proceedings, with the international dimension that it contains, with the peculiar intensity of the post-abduction environment, and where the cloak of con?dentiality arises not simply from inference but from express terms, will not necessarily attract the Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 exceptions but rather would be immune from disclosure in all circumstances, save for those identi?ed in In re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231 and accepted within the mediation framework itself, namely disclosure might be justi?ed where there was a risk of signi?cant harm to a child. In so far as I can, in this limited context, I would want to reassure mediators that the cloak of con?dentiality remains as securely fastened as ever it was.”

1. 1. Further support for this analysis is to be found in PD12B FPR 2010 para 5.11, under the heading ‘Non-court resolution of disputed arrangements for children’ where it is said that:

“Mediation is a confidential process; none of the parties to the mediation may provide information to the court as to the content of any discussions held in mediation and/or the reasons why agreement was not reached. Similarly, the mediator may not provide such information, unless the mediator considers that a safeguarding issue arises.”

1. 1. Such an analysis also fits entirely with the terms of the written agreement signed by these parties on entering into mediation.

Discussion

1. 1. The public interest in promoting and supporting mediation to enable parents to resolve disputes about their children, without recourse to the court and contested litigation, is at least as strong today as it was when In Re D was determined in 1993. That public interest was reinforced by Williams J in the 2017 Re D, specifically in the context of a dispute under the Hague Convention.

1. 1. The father does not seek to argue that disclosure of discussions between these parties within mediation is justified by reason of a significant risk of harm to E. Nor does he suggest that one of the other Unilever exceptions does or should apply. Instead, he proposes that mediation privilege or the ‘without prejudice rule’ should give way to the wider interests of justice, his right to a fair trial and a simple test of relevance.

1. 1. In my judgment, the authorities relied upon by Ms Gilmore in support of that proposition are not really on point. There is undoubtedly a public interest in the court being able to “get at the truth” in the words of Baroness Hale in Re A. However, the pathway to the truth is unlikely to lie through disclosure of the otherwise privileged discussions within mediation. Parties must be free to discuss candidly all options for settlement and ‘think the unthinkable’ without fearing that their words will be used against them in any subsequent litigation. Mediators must be free to perform their valuable role without fearing they will be dragged into that litigation either by court orders for provision of their notes or to be called to give evidence for one parent and against the other. Otherwise, to paraphrase Lord Bingham MR, the mediation process is likely to fail.

1. 1. There is undoubtedly a substantial body of civil law jurisprudence on the ‘without prejudice rule’, its scope and the exceptions that may apply. Parties may, of course, agree to waive the privilege. In Farm Assist Limited (in Liquidation) v The Secretary of State for the Environment Food and Rural Affairs (No. 2) [2009] EWHC 1102 the parties had agreed to waive any mediation or ‘without prejudice’ privilege so the issue turned on the more limited issue of confidentiality as it applied to the mediator’s application to set aside a witness summons. That much is clear from paragraph 22 of the judgment of Ramsey J where he said:

“the general rule is that without prejudice privilege is the privilege of the parties to the dispute which can be waived by those parties. It is not a privilege of the Mediator. As the parties in this case have clearly waived without prejudice privilege, the without prejudice exception to confidentiality no longer applies but this raises the question as to whether there is any other aspect of confidentiality which applies to a mediation.”

Ramsey J’s comments about the wider interests of justice have to be seen in that context. No issue in this case has been raised or pursued about waiver or consent.

1. 1. Ms Gilmore raises the point that the mediator has not herself objected to disclosure of her notes. She has agreed to provide them on the agreement of the parties or by order of the court. However, the stance taken by the mediator is of little or no relevance to the determination of the dispute between the parties. The ‘without prejudice’ nature of the discussions is as between them and only their waiver or consent could operate to remove the attached privilege.

1. 1. It follows that the mother’s application to exclude reference to the discussions within mediation from the evidence in this case must succeed. Equally it follows that the father’s application for disclosure of the mediator’s notes and permission to file a statement from her must fail.

1. 1. Ms Baker has helpfully identified the passages of evidence relied on by the father that she would seek to exclude. Parts of these relate to the discussions between the parties in the August 2020 mediation, as set out at paragraph 6(a) of her skeleton argument, the second part of 6(b) and the second part of 6(c). This was not a mediation that led to any concluded agreement, although there was subsequent correspondence between the parties which was not conducted on a ‘without prejudice’ basis and can, therefore, be relied upon by each of them. However, the passages referred to by Ms Baker clearly refer to discussions within the mediation itself and must therefore be excluded from the evidence to be put before the court at the final hearing.

1. 1. The other passages referred to by Ms Baker concern the 2019 mediation. That mediation did, as I have said, give rise to a concluded agreement as set out in the parenting plan signed by the parties on 18 February 2019. The passages identified by Ms Baker do not in fact refer back to the discussions within the mediation. They refer to the terms of the parenting plan and, to a very limited extent, the inferences that can be drawn from it. Whether those inferences can properly be drawn will be a matter for the trial judge. However, there is nothing objectionable in the material that I have seen and do not consider that this part of the evidence should be excluded.

2. Accordingly, I grant in part the mother’s application and dismiss the father’s application.