It is obviously vital that we gather as much evidence as we can of the experience of foreign jurisdictions, particularly those like Australia and the US where the existing rules of evidence are recognisably similar. The reinvigorated PIM is to using its extensive overseas contacts to that end and will publish  findings in due course.  

This article is already too long and can only cast the briefest of glances overseas.  But much that we see there is familiar. 

The US scene is an (almost indigestibly) rich source of evidence and discussion about the way different statutory schemes can work. Different states have taken different approaches but all recognise some at least of what we would recognise as the two-party exceptions. In fact in 2001 there were reckoned to be over 2,500 pieces of state legislation relevant to mediation matters including mediation confidentiality. 

The most extreme position has for some time been that adopted in California.  The exceptions to confidentiality are so limited that it has become a matter of vigorous complaint from the California Court of Appeals: 

“ Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft one that would permit countervailing public policies to be considered. 

“In light of the harsh ands inequitable results of the mediation confidentiality statutes …the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, then they should ‘make it clear at the outset that something other than a mediation is intended.’”  [27]  

The “unintended consequences” of the California rules included cases, “ where a party was lied to by her own attorney, the mediator and a third party; a scrivenor’s error in a mediated settlement led to a $600,000 windfall to one party; parties claimed their own attorney coerced them into signing a settlement agreement; a mother waived parental rights; and the parties agreed to perform an illegal act in the mediated agreement.”[28] 

These are battles about the extent to which unqualified confidentiality prevents proper enforcement of mediated settlements; these are the equivalent of the two-party issues discussed above. The Uniform Mediation Act adopted in 2001 was developed over several years after wide consultation in an attempt to create some uniformity of state laws. It consciously did not adopt the strict Californian model. For example it allows evidence of the negotiations to be admitted where an allegation of fraud is made or where a party wishes to sue his attorney or the mediator for negligence (the latter of course being a three-party case strictly speaking). On the other hand it will not allow evidence of an oral agreement to be adduced.     

For some the UMA  did not go far enough. Critics included the author of the pithily-entitled “Centuries of Common Law Can’t All be Wrong: Why the UMA’s Exceptions to Confidentiality in Enforcement Proceedings Should be Embraced and Broadened.” [29]  The California Supreme Court has repeatedly had to slap down the lower courts who have devised various methods of circumventing  the confidentiality statute in order to do justice in individual cases.[30]      

On the other hand  in New York, one of the large number of states that has not adopted the UMA, a court recently  ruled that although negotiations were normally protected from disclosure by state law the policy goal of encouraging settlement also required that it be possible to prove that an agreement (written or oral) had been reached.[31]   Evidence of oral discussions was admitted. 

The hard line view on these enforcement issues is that provided  good practice is followed in drafting the settlement there will be no injustices, an approach with which we are familiar.  Good practice here means documenting the settlement fully and accurately, not making errors in the numbers and including as terms of the contract any representations you wish to rely on.  Some have even advised that you should even get the parties when they settle to sign a separate document confirming they are not acting under duress and are under no physical impairment! [32] The circularity that bedevils much of this thinking seems particularly  conspicuous in that last suggestion.     

In Australia there are also recognisable equivalents of the two-party exceptions in the Evidence  Act 1995,  listed in the eleven sub-sections of s. 131.  Strikingly evidence of negotiation is admissible for the purposes of any dispute about whether a settlement was made   as is evidence of  any communication made in furtherance of a fraud. 

There is no obvious sign of any equivalent of the three-party principles developed in Muller although there are echoes of the Hoffman approach in, for example, the New York Civil Practice law and Rules which provides for the inadmissibility of mediation material as “ “proof of liability” or “invalidity of claim”  but states that: 

“…the exclusion established by this section shall not limit the admissibility of such evidence when it is  offered for another purpose, such as proving bias or prejudice of a witness, negating a a contention of undue delay…”[33]  

It is not clear whether that can be or has been exploited beyond the limits of the dispute between the two immediate parties.  

The position of the mediator is in many cases separately protected. The UMA effectively makes the mediator’s involvement as a witness entirely a matter for the  mediator’s discretion.  This has been attacked by a number of critics who point out that it is often going to be the mediator who has the best (sometimes the only) evidence on enforcement issues. The UMA also provides that while for most purposes the parties can jointly decide to waive confidentiality the mediator has to give his consent  before one of his communications is disclosed.  For those of us trying to keep our darker tricks concealed that might be a useful precedent.   

All in all there is no uniformity of  and it is vital that the full range canvassed in any survey of  international experience and opinion. [34]