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

3.130 The Court noted that the possible existence and desirability of a
distinct privilege attaching to the entire mediation process was dealt with in
Brown and Marriott ADR Principles and Practice. 150 As already noted, the Court
decided the case under the existing ―without prejudice‖ rule. Accordingly, it was
not necessary for the Court to determine the question of whether a distinct
‗mediation privilege‘ existed.
3.131 It remains possible and thus a matter of concern that a mediator
could be called to give evidence in subsequent litigation between the parties.
Parties could attempt to extend confidentiality to the mediator by including a
contractual provision to that effect in the mediation agreement.
―A substantial and, to our knowledge, unquestioned line of authority
establishes that where a third party [whether official or unofficial,
professional or lay] receives information in confidence with a view to
conciliation the courts will not compel him to disclose what was said
without the parties‘ agreement.‖ 151
3.132 In its 2002 Green <strong>Paper</strong> on Alternative Dispute Resolution in Civil
and Commercial Law, the European Commission stated: "As a rule the third
party [the mediator] should not be able to be called as a witness…within the
framework of the same dispute if ADR has failed." 152 This approach is being
formalised in the United States as mediator privilege. The Uniform Mediation
Act provides: ―A mediator may refuse to disclose a mediation communication,
and may prevent any other person from disclosing a mediation communication
of the mediator.‖ 153 As noted by the Court in Brown v Patel ―It may be in the
future that the existence of a distinct mediation privilege will require to be
considered by either the legislature or the courts but that is not something which
arises [in this case].‖ 154
150 Brown and Marriott ADR Principles & Practice (Sweet & Maxwell, London, 1999),
paras 22-079 to 22-097.
151 Per Bingham MR in Re D [Minors] [1993] 2 All ER 693.
152 Green <strong>Paper</strong> on Alternative Dispute Resolution in Civil and Commercial Matters
COM/2002/0196 Final at para. 82. Available at http://eurlex.europa.eu/.
153 Section 4(b)(2). This follows a line of cases, the most notable of which was NLRB
v Macaluso 618 F. 2d 51 (9th Cir. 1980), which stated that the public interest in
maintaining the perceived and actual impartiality of mediators outweighs the
benefits derivable from a given mediator‘s testimony.
154 [2007] EWHC 625 (Ch).
110