Some mediation documents might not remain confidential

A neat link from disclosure issues to alternative dispute resolution (ADR) can be found in the decision of Savings Advice Limited v. EDF Energy Customers plc [2017] EWHC B1 (Costs). The parties' mediation was unsuccessful but they settled their dispute a few months later, when the claimants accepted the defendants' Part 36 offer. The claimants were entitled to recover costs on the standard basis. The parties reached agreement in respect of some aspects, but were unable to reach agreement in respect of a significant sum for after the event insurance (ATE). This issue was dealt with by assessment proceedings. During the assessment proceedings, an issue arose as to whether documents submitted as part of the mediation, which referred to costs, were admissible.

The parties' mediation agreement contained a confidentiality clause as well as a clause providing that all documents or other material produced for the mediation would be subject to without prejudice privilege and not disclosable in any litigation connected with the dispute – so long as and to the extent that such privilege applies. However, the court held that costs information given to the claimants for the purpose of the mediation was, in fact, admissible in the costs assessment proceedings.

Master Haworth concluded that: "the relevant statement of the defendant's costs was … a statement of pure fact and nothing more: it was not protected by "without prejudice privilege." … "The whole purpose of the mediation was to achieve a settlement. In those circumstances any costs information given in mediation is and must be admissible in order to work out the consequence of any subsequent settlement. In that sense in my judgment, costs information in the form of statements of facts can be separated out from documents or other information that comes into the domain of either party for the purposes of negotiating a settlement of the substantive claim." (See paragraph 30 of the judgment.) Further, the costs documents were headed "without prejudice save as to costs", which Master Haworth took to illustrate their admissibility for the purpose of the costs assessment.

CEDR model mediation documents updated

The Centre for Effective Dispute Resolution (CEDR) has published a 2017 update of its mediation model documents and rules. An accompanying note on the updates, Changes on the 2017 Edition of CEDR's Model Mediation Documents, and a CEDR bulletin of November 2016 explain the reasons for the changes including: to clarify the wording; to protect the essential nature of the mediation and stress that parties attend mediation "in good faith"; to afford parties different process options to cater for the trend of mediation at late notice; and to ensure that confidentiality and the without prejudice nature of correspondence is maintained if negotiations continue after the mediation day.

Some disputes cry out for mediation

In Bramwell and others v. Robinson [2016] EWHC B26 (Ch), the County Court issued another reminder that some cases are best dealt with through ADR procedures. In this case, mediation would have been a far more effective procedure for the case than litigation. In Behrens J's view: "[This dispute] ought never to have come near a court, and with a modicum of goodwill on both sides, it would not have done so." The parties had tried to mediate but relations were so bad that both parties thought it necessary to go to court. Neither was happy with the court's application of the law to their situation and the end result led to disappointment. No matter how low the relationship has sunk between disputing parties, most of the time, it is worth finding a way to bring the dispute to mediation.