Conflict Resolution

Mediator as Witness: Just When You Thought It Was Safe….

John Richardson, that worthy and thoughtful New York mediator, has brought to our attention a decision by Hon. Mr. Justice Ramsey of the Royal Courts of Justice in England that seems to render unenforceable the commonplace contractual provisions immunizing mediators from testifying as to the conduct of the mediation.

In Farm Assist Limited vs. DEFRA, dated May 19, 2009, claimant sought to set aside a settlement agreement obtained after a mediation that took place in 2003, on the ground that it was entered into under economic duress.  Defendant requested that the mediator, Jane Andrewartha, be compelled to give evidence as to what happened at the mediation.  Claimant did not object.  The court ordered that, in the first instance, she produce her files and, eventually, that she give a witness statement.

In response to the court’s order, Ms. Andrewartha noted that her engagement agreement provided that the parties would not call her as a witness, and she applied to set aside the summons issued to her on the grounds both of contract and of generally recognized grounds of confidentiality and privilege.

She lost.

The court held, on the first issue, that the confidentiality of private mediation is subject to an exception “where it is necessary in the interests of justice for evidence to be given of confidential matters.”  The court further questioned the scope of the contractual undertaking, noting that the parties agreed not to call the mediator as a witness “in relation to the Dispute,” while the present conflict related not to the Dispute but rather to the terms upon which the Dispute was voluntarily resolved.  [sic

As to the question of confidentiality and privilege as a general evidentialry matter, the court noted that the claimant pleaded what happened in the mediation, and the defendant waived any objection to — indeed requested –testimony respecting it.  Because “the Mediator has an enforceable right to confidentiality under the express terms of the Mediation Agreement unless it is in the interests of justice that she should be called as a witness,” the court’s determination itself disposed of that objection.

In American, I would translate all of this jurisprudence as: “It’s confidential unless I say it ain’t.”

Why a party should sign an undertaking not to call a neutral as witness, then enter into a settlement, then challenge both the settlement and the neutral’s witness immunity, I cannot imagine.  Why a court would legitimate such behavior is also perplexing.

But Jane (and other British mediators) might revise their view of the enforceability of their engagement agreements in the future.  And they might take some care, in their mediations, to utter only those words that they are comfortable being repeated in court.

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