Overview

Parties entering into a mediation usually sign a mediation agreement in advance which will include detailed and express provisions regarding confidentiality and privilege. This is generally followed up at the start of the mediation with the familiar words of the mediator that everything said during the course of the mediation is strictly confidential, and privileged, and cannot be referred to or relied on by the parties outside of the mediation process.

This protection, however, may not be as secure as parties may have previously thought. What is said in the confines of a mediation may not always stay there.

This briefing outlines the general position and case law, including Brown v Rice [2007] and Farm Assist Limited (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009], that shapes the basis of protection.

The briefing questions whether, in light of the Farm Assist decision, mediation privilege should be created to preserve and enhance the attractiveness of mediation.