Consultation Paper on Alternative Dispute Resolution - Law Reform ...

J. approved four criteria favoured by Dean Wigmore 144 for the general purpose
of conferring privilege on communications arising from the confidential nature of
the relationship between the communicants. According to these criteria,
privilege may be established where the court is satisfied that:
1. the communication was confidential;
2. confidentiality is essential to the satisfactory maintenance of the
relationship;
3. the relationship is one the community deems necessary to foster;
and
4. the likely harm caused by mandatory disclosure outweighs the
benefit to be gained in the instant case by it. 145
3.127 Examples of categories of privilege include the absolute privileges
over confidential communications made by a parishioner to a priest (sacerdotal
privilege) 146 , or communications with a marriage guidance counsellor. 147
3.128 The Code of Ethics of the Mediators Institute of Ireland notes that
―Unless the mediation is specifically given legal privilege under legislation it is
not privileged.‖ 148 It remains to be resolved definitively whether a general
privilege attaches to the whole mediation process, including all communications
passing within that process. The Commission notes that section 114 of the
Residential Tenancies Act 2004 provides for absolute privilege for mediators
only for the purposes of the law on defamation.
3.129 In the English case Brown v Rice and Patel, 149 counsel for the
defendant argued for the existence of a ―mediation privilege‖, distinct from the
―without prejudice‖ rule, under which (at least) a mediator could not be required
to appear as a witness or produce documents and under which the parties
could not waive the mediator's entitlement not to give evidence in respect of the
contents of mediation. It was argued that this should build on a category of
privilege in matrimonial cases, protecting confidential communications made
with a view to matrimonial conciliation.
144 Wigmore Anglo-American System of Evidence (3 rd ed. Vol. viii Boston 1940) at
paras 2380-91.
145 Healy Irish Laws of Evidence (Round Hall 2004) at 396.
146 Cook v Carroll [1945] IR 515.
147 ER v JR [1981] 1 IR 125.
148 Mediators Institute of Ireland Code of Ethics at 4.3.
149 [2007] EWHC 625 (Ch).
109