UK: Mediator To Give Evidence On Mediation

Last Updated: 8 July 2009
Article by Guy Pendell and David A. Bridge

In a recent case the court dismissed a mediator's application to set aside a witness summons requiring her to provide evidence. The evidence related to a mediation over which she presided and which resulted in a settlement, that subsequently became the subject of litigation.


The issue arose following a mediation some years previously between Farm Assist Limited (now in liquidation) (FAL) and the Secretary of State for the Environment, Food and Rural Affairs (DEFRA), at which the parties reached an amicable settlement.

Some six years after the mediation FAL sought to set aside the settlement, alleging that it had been agreed under economic duress. DEFRA wished to call the mediator to give evidence and both parties agreed that the mediator should be asked to provide evidence, including details of her private conversations with the parties. When approached, the mediator informed the parties that she had retained no relevant documents and had little factual recollection of the mediation. Unsatisfied with this response, DEFRA served a witness summons to require the mediator's attendance at the trial. The mediator attempted to set aside the summons, relying upon the express provisions of confidentiality and non-attendance as provided for by the mediation agreement. The mediator also argued that her evidence would have been confidential and/or irrelevant.


The judge decided that the mediator should give evidence and held as follows:

1. Confidentiality - the proceedings in the case were confidential between the parties and the mediator and it would therefore require the consent of all three to waive the confidentiality. However, the court, will where it is in the interests of justice to do so, waive this confidentiality. In this case, the allegation of economic duress could only be assessed by reference to what had happened in the mediation, and it was therefore in the interests of justice for the mediator to give this evidence.

2. Privilege – the court recognised that privilege in mediation proceedings might exist in many forms and discussed these in turn:

a. legal advice privilege: the use of correspondence between solicitor and client at mediation would not result in the privilege being lost;

b. litigation privilege: similarly, where the document is used for the purposes of the mediation, the without prejudice privilege will not be lost;

c. without prejudice privilege – all information provided in the course of mediation is deemed to be without prejudice and is not admissible in any litigation of the dispute. However, this is a privilege that belongs to the parties, and not to the mediator; the parties waived this when they agreed that a witness statement could be taken from the mediator;

d. mediation privilege: the court found that it is yet to be definitively determined whether there is such a privilege that extends to the mediation process as a whole, but that what privilege there is extends to the parties as opposed to the mediator.

3. The mediation agreement provided that none of the parties could call the mediator as a witness in any litigation, or arbitration "in relation to the Dispute" and that the mediation would be treated as confidential as between the parties and the mediator, except where the court made an order to the contrary. The "Dispute" was defined by the agreement as being a dispute relating "to the work performed by [FAL] on behalf of [DEFRA] during the foot and mouth epidemic in 2001". The court held that the current proceedings related to the circumstances under which the settlement agreement was entered into, rather than a "Dispute" as narrowly defined by the terms of the mediation agreement, and therefore the confidentiality provision did not apply.

4. Even though the mediator claimed that she had little recollection of the mediation, there was a possibility that she would recall certain details when presented with documents.


This decision highlights the exceptional circumstances in which it is in the interests of justice for the court to refuse to uphold the confidentiality provisions in mediation agreements, and grant an application requiring the mediator to give evidence of the mediation. Here, economic duress was alleged and the conduct of the parties at the mediation had to be assessed in order to determine whether the settlement agreement should be set aside.

The case serves as a reminder that mediation is a form of assisted without prejudice negotiation and that the limits of without prejudice negotiations apply equally to mediation. Similar situations in which evidence may be sought include those where maintaining confidentiality would allow perjury or blackmail, or where referring to without prejudice material is necessary to explain a delay, or similar issue. However, it is likely that the decision would have differed if one of the parties had been unwilling to seek evidence from the mediator and not waived their right to without prejudice privilege.

This decision warns potential parties to mediation that confidentiality provisions in a settlement agreement need to be carefully structured. There are circumstances in which even the most cautiously worded agreement may not protect against issues such as serious misconduct, which the court might choose to examine. It also serves as a useful reminder to parties and mediators to consider taking detailed notes during the mediation.

Finally, a mediator seeking to avoid being called as a witness in proceedings relating to that mediation should ensure that any agreement to that effect is drafted in the broadest terms and captures all potential subsequent proceedings.

This decision should also be read in the light of the EU Directive on Mediation, which seeks to preserve confidentiality in mediations subject to public policy exceptions. UK laws are required to comply with this Directive by May 2011.

Further reading: Farm Assist Limited (in liquidation) and the Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/07/2009.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.