As ADR usage increases, Tony Allen explains the steps needed to ensure mediation confidentiality
The EU draft Directive on mediation (COM (2004) 718) encourages member states to introduce legislation by September 2007 providing for non-admissibility both of evidence from mediators and about what happened at a mediation. Mediators and mediation service providers would not be compelled to give evidence of:
- invitations to mediate or a party’s unwillingness to mediate;
- offers to settle, statements or admissions made by a party during a mediation;
- mediator proposals, or a party’s willingness to accept such a proposal; or
- any document prepared solely for the purpose of a mediation.
admission of evidence
The Directive also proposes that a court should not be able to admit any such evidence except to enforce a settlement agreement reached as a direct result of a mediation, or where the mediator and the parties agree. These proposals have so far been ignored in the UK, though several other European states have enacted such provisions. Do we need such legislation here? Two recent first instance decisions suggest that we might:
- In Brown v Rice and Patel [2007] EWHC 625
