How do we take the debate forward and how in the short-term should mediators respond to the present state of the law?  

As we emerge blinking from the mines of the law we can take a deep breath of fresh air and look about us. We see our fellow men and women conducting their ordinary commercial dealings in a way which is in a general sense private; businessmen and women do not discuss prices and delivery schedules in front of their competitors. But if the discussions have to be investigated (was there a deal? did somebody lie?) those discussions can then be examined in a court of law. If it were otherwise the Commercial Court would stand idle and fraud and duplicity would stalk the land.

The law’s rightful insistence that cases be tried as far as possible on the best and most complete evidence has not brought the commercial or social life of the country to a halt as far as I know.   The law accepts that good faith attempts to settle a dispute as distinct from other forms of negotiation deserve special treatment: hence without prejudice privilege It balances the need for candour in negotiation with the need to ensure the fair and proper adjudication of disputes which may arise in the negotiation’s wake.  

Mediators need to be clearer than they have been to date as to why the present law  on without prejudice privilege strikes that balance, if it does, in the wrong place and above all why  the balance needs to swing yet further in the direction of secrecy simply because   a mediator is involved.    

This a difficult area of law.  Reform of the law is not going to be simple but will raise complex questions. The detailed discussion of any proposed legislation needs to begin urgently if the time taken in drafting the Uniform Mediation Act is any guide.  Certainly we will not get any legislation simply by informing the Ministry of Justice that the mediation gods are angry.   The questions we need to answer are, as a minimum,  these: 

• If mediation needs protection going beyond that afforded by normal without prejudice privilege why is this and what will the benefits of the additional protection be?
• Which of the numerous possible two-party exceptions do we wish to preserve from the present law or do we wish to import from overseas?
• Do we wish to preserve at all the ability of the parties to separate or subsequent disputes to make use of statements and documents arising in early mediations (the three-party cases)? If we object to the volatility of the general principle espoused in Muller are there particular circumstances, such as a claim against a negligent lawyer or mediator, where the material should be admissible in a three-party context? 
• Should special protection be given to mediators to prevent them being compellable outside wholly exceptional circumstances?
• Should special status be given to statements made by the mediator, as in the Uniform Mediation Act?
• Finally is the proposed new law, whatever it may be, vulnerable to challenge under Article 6 of the Human Rights Convention?

Meanwhile what should mediators be doing about all of this? 

First what should we say to the parties at our mediations?

Normally we say something like this:

“This mediation is both confidential and without prejudice. That means first that all of us , all of the individuals here and the two parties, are bound to keep this mediation and everything said and referred to here private from the outside world. Moreover the negotiations are without prejudice. That means that you are free to discuss the issues in the case and perhaps even to make proposals for the settlement of this case without those statements being referred to later in court as some form of admission or concession.  

If mediators now want to qualify that the following addendum would surely be adequate: 

Many of you will know that confidentiality is never absolute and unqualified. I should warn you that there are a limited number of situations in which statements and documents arising in the mediation can be referred to subsequently either by one or both of you or by third parties with whom you subsequently get into litigation.  These situations are in our experience relatively rare. If any of you are troubled by that possibility or wish to discuss it further then either I or your legal advisor will be happy discuss it further. But I do repeat the all-important assurance that you can mediate today without your proposals or your position being referred to in the event that we do not settle and this case goes on to trial.” 

Second, should we keep notes? In my view, yes. We have to make notes to do the job, particularly now that so many mediations move on into an after-life of telephone calls and cups of coffee as the final gap is sought to be bridged. We need to make a practice of keeping notes and keeping them accessible. Nobody can or should keep a verbatim record. Notes will be fairly sparse  in the closing stages of a fast-moving settlement. But the law is such that in some situations you can probably be compelled to give evidence about the content of your mediations. If you don’t keep any notes  then you need to be sure you will feel comfortable appearing on a witness summons and telling the court that you either never had any notes or have destroyed the ones you took.  

Leaving aside legal obligations, if a fraudulent representation was alleged to have been made through a mediator would he or she not feel a moral obligation to assist with his recollection? Without the mediator’s evidence the fraud might be impossible to prove.  At least one leading mediator is at the moment wrestling with this dilemma.   

Third, are we threatened with endless satellite litigation over these issues? Well, some almost certainly.  In excess of 3,000 civil disputes a year are now being submitted to this relatively novel process and it would be surprising if some of the boundaries were not being explored. But nobody should imagine that life will be much simpler in this regard following the introduction of a new privilege by an unprecedented statutory intervention. Elsewhere that has just been the beginning of a new set of arguments.  

One last thought. Mediation is not the only area in which the EU directive may prompt legislation.  Another is the requirement in Article 6 that member states take steps to ensure that mediated settlements are internationally enforceable as if they were judgments.  Both provisions give a special and striking status to mediation and to the mediator.  There will be those who wonder whether that status should be accorded to a mediation conducted by “just anybody” or whether the price for all this special treatment should not be a statutory scheme of regulation for our profession. Greater privacy for the parties may only be available at a price. 

Meanwhile we eagerly await news from Florida of Girls Gone Wild and the next round of Joe Francis’ battle with the formidable District Judge Smoak. The disposition of his latest appeal should yield useful guidance as well as entertainment.  

In this area there is clearly an urgent need for both.   

WILLIAM WOOD QC