Arbitration & Mediation

Wave Good-Bye to Mediation Confidentiality in the U.K.

By Victoria Pynchon

From the Business Conflict Blog comes bad news from the U.K., Mediator as Witness, Just When You Thought it Was Safe (excerpt below):

John Richardson, that worthy and thoughtful New York mediator, has brought to our attention a decision by Hon. Mr. Justice Ramsey of the Royal Courts of Justice in England that seems to render unenforceable the commonplace contractual provisions immunizing mediators from testifying as to the conduct of the mediation.

In Farm Assist Limited vs. DEFRA, dated May 19, 2009, claimant sought to set aside a settlement agreement obtained after a mediation that took place in 2003, on the ground that it was entered into under economic duress. Defendant requested that the mediator, Jane Andrewartha, be compelled to give evidence as to what happened at the mediation. Claimant did not object. The court ordered that, in the first instance, she produce her files and, eventually, that she give a witness statement.

If you take the time to read the opinion, you'll see that the confidentiality protections at risk here do not arise solely from the parties' contract, but also from the case law.  Not good news for U.K. mediation practice.

Hat tip for the head's up to Jeff Gordon, he of the Software Licensing Handbook who is in my twitter network (@negot8or) (follow him!)

Full post as published by Settle It Now Negotiation Blog on September 18, 2009 (boomark / email).