As we are accredited mediators, we were very interested in a decision in the UK upholding the confidentiality of mediation. The UK case is a case of SG -v- SW [2020] EWHC3379 (Fam). This is a case where L. Samuels QC (sitting as a Deputy High Court Judge) dismissed an application for the disclosure of the notes of a mediator whom the parties had met. In addition, there was a refusal of permission for the father to file a statement from the mediator in proceedings under the 1980 Hague Convention. In this case it was stated:

“There is undoubtedly a public interest in the Court being able to “get to the truth”, in the words of Baroness Hale in Re A. However, the pathway to the truth is unlikely to lie through the disclosure of the otherwise privileged discussions within mediation. Parties must be free to discuss candidly all options for settlement and “think the unthinkable” without fearing that their words will be used against them in any subsequent litigation. Mediators must be free to perform their valuable role without fearing they will be dragged into that litigation either by Court orders for provision of their notes or to be called to give evidence for one parent and against the other. Otherwise, to paraphrase Lord Bingham MR, the mediation process is likely to fail”

This is an important statement in a UK case. It is not binding in Irish law but at the same time it attracts what is called persuasive authority.

The whole role of mediation is that it is confidential. As mediators we see the benefit of mediation where parties can discuss matters knowing that those discussions will not be disclosed outside a mediation.

There is one exception in the Mediation Act, here in Ireland and that is that a Court can ask the mediator as to whether or not the parties took part in mediation in good faith. That does not mean that the parties have to reach agreement but the question is was the mediation done in good faith rather than simply as an exercise or time wasting.

It is surprising the number of cases that can settle by mediation, even where parties may seem to be heading towards the Courts and at opposite ends of any hope of a settlement. The role of a mediator is there not as an arbitrator, not as a judge, not as a conciliator. The mediator is there to facilitate open discussion between parties. It is surprising how often those open discussions can ultimately lead to a settlement which is acceptable to both parties.

The certainty that parties have confidentiality in mediation is a significant benefit for all.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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