Mediation is confidential…right?

Mediator Summoned to Give Evidence at Trial Regarding Mediation

This article is definitely worth a read. Both parties agreed to waive the confidentiality agreement during a court proceeding but the mediator still refused to provide a witness statement.Clause 6 of the Agree to Mediate Contract stated the following:

* all communications at and relating to the mediation would be without prejudice;

* all information produced for the mediation (or arising in relation thereto) would be kept confidential;

* all documents produced for the mediation (or arising in relation thereto) would be privileged and would not be admissible as evidence or discoverable in litigation or arbitration connected with the dispute (as defined); and

* none of the parties to the mediation agreement would call the mediator as a witness in litigation or arbitration in relation to the dispute, nor would the mediator voluntarily act in any such capacity without the written agreement of all parties.

Despite that, the judge had this to say:

The judge dismissed the application and held that the mediator should give evidence in response to the witness summons. In reaching his decision, he considered at length the legal and academic authorities on confidentiality and privilege in mediations.

So what would you do if you were in this situation? What’s the point of a confidentiality agreement? Has anyone been in a similar situation?Read the rest of the article [here].

The judge does give a detailed response for his ordering the mediator to sit in the witness stand and it is listed in the article.

Note: this took place in the United Kingdom.