Confidentiality

The decision of Mr Justice Ramseys in Farm Assist Ltd v Secretary of State for the Environment, Food & Rural Affairs (No 2) [2009] EWHC 1102 (TCC) involved an application by a mediator to overturn a witness summons requiring her to give evidence as to what had gone on at a mediation for the purposes of determining whether the subsequent settlement agreement had been tainted by economic duress. The court reviewed the law on confidentiality and privilege, and determined that the witness summons should not be set aside. It is to be noted that the application in the present case was not one that arose from a failure of the parties to agree and which led to later litigation in which evidence of what had been said in the mediation was to be used in the later proceedings on the dispute itself. The facts in the present case were, therefore, somewhat exceptional and should not be regarded as laying down any general rule that mediators can be summoned to give evidence in court or arbitration proceedings.

Farm Assist: the Mediation Agreement

A dispute arose between FAL and DEFRA, and in June 2003 they entered into a Mediation Agreement so that the matter could be resolved. The Mediation Agreement contained a series of clauses relating to confidentiality. Clause 6 stated that the parties agreed to the confidentiality provisions of the Mediation Procedure appended to the Agreement. The Mediation Procedure provided, in para 1, that ‘All communications relating to, and at, the Mediation will be without prejudice.’ Paragraph 7 permitted each party to send further documentation to the Mediator which it wished to disclose to her but not to the other party; para 11 obliged each party to keep confidential and not use for any collateral or ulterior purpose the fact that the mediation had take place and all information arising out of it; para 12 stated that all documents produced for or arising in relation to the Mediation were privileged and not admissible as evidence; and para 13 provided that none of the parties to the Mediation Agreement would call the Mediator as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the dispute and the Mediator would not voluntarily act in any such capacity without the written agreement of all the parties.