Once upon a time everyone understood that part of what made mediation an ‘alternative’ form of dispute resolution was that the talks remained confidential. Was. Not any more they don’t
Mediation was such a relief: like being in a traffic-free zone. It was the antidote and alternative to rule-bound litigation. That’s how it came to be known as alternative dispute resolution … it was an alternative to “ODR” … ordinary dispute resolution. I keep saying “was”. It was, once, a rule-free zone. It was glorious. Simple. Folks were in dispute, so they pulled in a complete outsider and this fellah just, sort of, chatted to them and with a bit of soft soap would ease the dispute out of agony. A good neighbour, that’s all. Was.
But now it’s being ruined by rules. Now then, I am not going to say much about a case called Ruttle vs secretary of state for the environment. That’s because it is still on its merry way to trial. It was another one of those foot and mouth disease clean-up cases. The final account for one contract was £16m. The ministry paid half and queried the other half. There was a mediation. The resolution saw the contractor pocket another £3m. The cheque arrived. Don’t ask why or how, but the contractor later said the mediated settlement was void because it was a result of him being under economic duress. I say nothing, except for this: notice how the rule-free zone of voluntary mediation sees someone reaching for the rule book? Remember, mediation asks nobody to make a decision. Remember, the idea is to warm up the parties to voluntarily settle. This isn’t a judicial process; it’s merely a party to get folk to give and take, them part company and put it all behind them.
There is more enthusiasm for challenging what happened in the mediation by calling on the courts to intervene. This is explained in a commentary by an experienced commercial mediator, David Cornes. He not only questions whether “mediation privilege” is under threat but hints that it may be time for a mediation act for England and Wales. His comments focus on concerns that the discussions and dialogue in mediation were once “nobody’s business” but the parties’ business. Was. That notion doesn’t need a rule of law, since it just makes common sense … it’s none of your business, old boy, when two commercial folk fall out. Nor is it any outsider’s business what they say and do in reaching a settlement. If a good neighbour helps out in that settlement, that too was nobody’s business. Nobody can “make” the parties talk about it. It so happens that the law reflects all that common sense – it’s a principle called “privilege”. Negotiations are privileged and private. Nobody talks, got it?
Being a rule-free zone makes mediation popular, but now there are some folk asking the courts to order the parties, even the mediator, to spill the beans about what happened in the mediation. In one case, the parties hadn’t confirmed their compromise so they came to court to prove an oral compromise had occurred late in the evening of the mediation. The court thought that was all in order. The judge said: “It would be an odd result if in any given case, the court was prevented from determining the existence of a concluded settlement solely because the alleged settlement arose within the context of a mediation.” And, lawyers will say: “Oh yes, of course.” Well, maybe, but it is a foot in the door of messing up the rule-free zone.
Mediation is privileged and private. Nobody talks. Got it? But now there are some folk asking the courts to order the parties, even the mediator, to spill the beans
An organisation called the ADR Group argues that nothing said or done in preparation for, at, or in consequence of the mediation that is liable to disclose the nature of the negotiations, can ever be used outside the mediation process, in the absence of a prima facie case or credible evidence of unambiguous impropriety. No, no, says the court, the court rules will apply.
That’s a pity. What I mean is that when commercial folk volunteer to mediate, they know full well that they are in familiar bargaining territory. This is the bazaar, not lawyer land. They can bring lawyers, can have lawyer mediators or my old granny, but for heaven’s sake leave this patch of territory free to be commercial.
It has to remain none of the court’s business. Yes, I know there are limits to this court-free zone. A so-called settlement helped by a few thugs with baseball bats isn’t a settlement at all. I think that’s the sort of exception the ADR Group is on about. Apart from such events, do keep alternative dispute resolution alternative.
Tony Bingham is a barrister and arbitrator