Mediation – confidential and without prejudice

Posted on August 21, 2017 by Jeremy Frost

Mediation is about neutrality. A mediator is not there to take sides. It is also private and confidential. 

Without prejudice

This is a phrase used by many but understood by few. To the layman it means that the correspondence or meeting is taking place outside the litigation sphere. Anything that is revealed therefore cannot be used in a future legal dispute. 

There are of course some addenda to this, such as “without prejudice save as to costs” etc. i.e. this correspondence cannot be used in the litigation until the costs become an issue. 

Courts are increasingly wanting to see that parties are trying to settle their differences without the requirement of formal proceedings. Therefore, if one party makes an offer to settle which is not improved upon by the court, then the costs will not necessarily follow the event. Put simply you might win the argument but still get the privilege of paying a portion of the other side’s costs. 

All discussions with a mediator are confidential. Therefore, information will only be shared between parties with their express agreement. 

The reason is simple. The parties, whether with their legal advisors or not, can talk openly about issues and without prejudice. The mediator can act to challenge assumptions and expectations and really understand what it is that each party wants or needs from the dispute. Remember they are there to help you gain a result. 

So, anything disclosed during the mediation session is done so on the basis that disclosure is to facilitate agreement. It cannot therefore be used in court at a later date.

If one party discloses information, the mediator will only share this with the other party with permission, although the timing of the sharing of the information is the decision of the mediator. Clearly ill-considered sharing of information might harden a position. 

If there is an agreement, the settlement document will include who can say what and lawyers will put clauses in to protect their client as part of the agreement.

But what is the role of the mediator and why should you put your case in the hands of one?

Building trust

The mediator's role is to listen, challenge and build trust between the parties after they have initially built trust between themself and each of the parties. This trust-building is key to success. A successful mediation will see each party using the mediator to find an acceptable path, i.e. the compromise or point that is acceptable to all parties. Confidentiality and trust are key. 

We must remember though, that a mediator is not a referee. They merely manage what both sides are doing; getting them to focus on the areas where there is agreement, and where they feel the start of an agreement can take hold. They will get the parties to reflect what the key issues are and whether and how these might be reflected in the legal case.

The mediator is not there to decide the case; they are there to help, not to rule. The dispute is the parties’ and it is their decision on how the dispute is resolved, the mediator merely facilitates.