Important UK case emphasising confidentiality of Mediator’s notes
A recent decision of the High Court in England has emphasised the privileged and confidential nature of mediator’s notes taken during the course of a mediation.
In a case of SG vs SW the parties had entered into a mediated process for the purpose of resolving parenting rights.
The mother’s circumstances subsequently changed and she brought an application for the children to be removed from the UK and in the father’s defence he wanted to rely on the agreement made in mediation in relation to parenting in support of his objection to the wife’s application to remove the children.
The court had regard to case law including a well-known decision in the Unilever case that without prejudice communications are not disclosable subject to certain limited exceptions. The Court noted that it was a matter of public policy that the courts supported the nature of without prejudice discussions (i.e. discussions that cannot be disclosed in open court) so as to encourage the parties to settle their cases before they come to court without fear that discussions could subsequently be used in court against them.
The husband argued that the mediation privilege and without prejudice rule which would normally apply should give way in this case to the wider interests of justice, his right to a fair trial and the simple test of relevance.
He also made the argument that the mediator had not actually objected to the disclosure of his notes provided that either both parties agreed or the court directed such disclosure. The court held that the mediator’s view in this regard was not relevant and found against the father and refused the application to allow the mediators’ notes be disclosed.
This is an important decision to ensure that matters which are discussed in mediation can be conducted in an open fashion by the parties without fear that any concessions given in the course of mediation might be subsequently used in a subsequent contested court application.
If you require any further information in relation to mediation or any family law matter please don’t hesitate to contact Brendan Dillon or Lorna McArdle on 01 296 0666.
