You probably like to think that mediation is a private dispute resolution method where everything is kept secret. But it seems the courts can order you to reveal all
Quis custodiet ipsos custodes? Now that’s one helluva heavyweight way of beginning my story. It’s a Latin phrase that gets translated as “Who will guard us from the guards? Who will police the police?” Topical? Oh, yes. Come back to all that?
I bet you that mediators up and down the land will wriggle a fraction (as I did) about what happened in the private mediation between Farm Assist (in liquidation) and Defra. And there’s the rub; it was supposed to be private. But one of the parties to the private, confidential, secret mediation has reached for the court. It wants the guards in the court to guard it from what was said to have happened on the day the dispute was mediated into a voluntary settlement. That ought not surprise us. The court is the guardsman of all dispute management processes, be they arbitration, adjudication, expert determination or a bloke swinging a club at your head.
In mediation nobody promises to tell the truth. But there is a line to be drawn between negotiating in good faith and negotiating in bad
In this case the mediator received an order to reveal her papers and give evidence on oath. She wriggled (so would I) and said no thanks. The court said she had no choice. Reason? “The interests of justice”. Such a big phrase; tricky to still say no!
The contractor said it did £16m worth of work for the government during the 2001 foot and mouth emergency. The customer happily paid about half. Then mediated. The idea is to sit around all day while a kind outsider armed with soft soap, well, er, mediates. And lo! Defra was forgiven £5m of the balance and agreed £3m. It paid up.
And that’s the end of it … usually. But afterwards, Farm Assist had a wriggle, too. It thought, on reflection, that it ought not to have settled for £3m. The suggestion is that the contractor had the wool pulled over its eyes. Formally it said: “Defra refused or failed to take a structured, reasoned, bilateral, or bona-fide approach to valuation of Farm Assist’s accounts and Defra’s conduct in the mediation contained illegitimate pressure and/or bad faith.” And to help the court to understand all this, the contractor wanted to rely on “what the mediator said in private sessions”.
Just let me explain what happens in mediation. The parties meet with the mediator in two ways … all in one room together and in private sessions, with the mediator shuttling to and fro between them. Ideas for settlement are mulled over. The mediator is privy to all sorts of private comment and is “authorised” to carry messages from one room to the other. Fun.
Of course, the messages are part of the negotiation. Negotiation often contains decoys, diversions, spin. Nobody promises to tell the truth. But there is a line to be drawn between negotiating in good faith and negotiating in bad. What drove the contractor to accuse Defra of a deliberate intention to harm? What messages did the mediator carry? What was in the mediation statements? Is there deceit, fraud, malevolence? Can the mediator please tell the court …?
Notice that the flavour of the accusation is that the mediation process itself has been corrupted. The court said that the confidentiality clause in the mediation agreement was all about keeping the quarrels in the dispute private. The distinction is that no privacy agreement attaches to the process of mediation. So there will be a trial where participants on the day of mediation will tell the court what they were told by the other party and told through the mediator about what the other side was saying. The mediator must be subjected to questioning. Mind you, the mere fact that this mediation took place exactly six years ago, and the mere fact that the mediator has already told the court that she has no notes from that time, and cannot remember anything about the affair, is nothing to the point. Memories can be jogged, recollections come to mind, the court brings an opportunity to focus on events long since past. It’s “in the interests of justice”.
The mere fact that the mediator has already told the court that she has no notes from that time, and cannot remember anything about the affair, is nothing to the point
Just a final thought … I can’t help wondering why the dispute about the mediation can’t be mediated …
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple