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\u00a0that seems to render\u00a0unenforceable the commonplace contractual provisions immunizing mediators from testifying as to the conduct of the mediation.<\/p>\n
In Farm Assist Limited vs. DEFRA<\/a>, 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.\u00a0 Defendant requested that the mediator, Jane Andrewartha<\/a>, be compelled to give evidence as to what happened at the mediation.\u00a0 Claimant did not object.\u00a0 The court ordered that, in the first instance, she produce her files and, eventually, that she give a witness statement.<\/p>\n In response to the court’s order, Ms. Andrewartha noted that\u00a0her engagement agreement\u00a0provided 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\u00a0grounds of confidentiality and privilege.<\/p>\n She lost.<\/p>\n The court held, on the first issue, that\u00a0the confidentiality of private mediation\u00a0is subject to an exception\u00a0“where it is necessary in the interests of justice for evidence to be given of confidential matters.”\u00a0 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,”\u00a0while the present conflict related not to the Dispute but rather to the terms upon which the Dispute was voluntarily resolved.\u00a0 [sic<\/em>]\u00a0<\/p>\n 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.\u00a0 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<\/em>,” the court’s determination itself disposed of that objection.<\/p>\n In American, I would translate\u00a0all of this jurisprudence\u00a0as: “It’s confidential unless I say it ain’t.”<\/p>\n 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.\u00a0 Why a court would legitimate such behavior is also perplexing.<\/p>\n But\u00a0Jane (and other British mediators) might revise their view of the enforceability of their engagement agreements in the future.\u00a0 And they might take some care, in their mediations,\u00a0to utter only those words that they are comfortable being repeated in court.<\/p>\n","protected":false},"excerpt":{"rendered":" A decision from England’s High Court of Justice eviscerates the principle of mediators’ immunity from compelled testimony.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[15,33],"class_list":["post-270","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","tag-mediation","tag-public-policy"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t