Following a successful mediation the parties again fall out and both write to you asking you to give evidence as to what each said at the mediation: what should you do?

After the conclusion of the mediation process, the Mediator has no further role to play in the dispute between the parties. Furthermore, after the conclusion of the mediation process, the Mediator will no longer have access to any documentation having destroyed all of the relevant papers. Furthermore, under the terms of the standard Mediation Agreement, it is expressly stated that the Mediator would not be a witness in any future proceedings and would not give evidence relating to such future proceedings. It is also clear from the standard Mediaton Agreement that the Mediator is under a continuing obligation to maintain confidentiality relating to all matters arising during the course of the mediation process. A Mediator cannot contravene the continuing duty of confidentiality. It should also be noted that all discussions during the mediation process enjoy the benefit of the “without prejudice” privilege in cases where there are extant legal proceedings. It therefore follows that a request to the Mediator to provide evidence relating to discussions held on a “without prejudice basis” would be entirely improper. It is clear that the Courts would not require the Mediator to provide evidence relating to what may have happened during the course of “without prejudice discussions”. At a technical level, it should be noted that discussions held under the without prejudice privilege are inadmissible in a Court of Law and accordingly the request to provide evidence could not require such inadmissible evidence to be provided in a Court of Law. Even if the evidence is not required for a Court of Law, nevertheless the Mediator cannot provide such evidence owing to the duty of confidentiality set out in the Mediation Agreement and which in itself is enforceable under the Common Law. One of the most recent authoritative reviews of the position is contained in the leading case of Rush and Tompkins Limited –v- Greater London Council (1988) 3 AER Page 737. This clearly reinforced the benefit of the without prejudice privilege and underlined the fact that all such without prejudice discussions constitute inadmissible evidence.

Given the above points, it is quite clear that the Mediator should inform both parties that he cannot respond to their request to provide evidence as to what each said at the mediation. However, the Mediator may, in rejecting the request from the parties, perhaps indicate that the parties may wish to consider a fresh mediation process for the purpose of seeking to resolve what again appears to be a fresh dispute.