Mediation: protection by privilege and confidentiality? by Tony Allen
Following closely after the saga of the Bournemouth airport car park in Seventh Earl of Malmesbury v Strutt & Parker [2008] EWHC 616 (QB), [2008] All ER (D) 339 (Apr), comes another case dealing with the confidentiality of the mediation process (see NLJ, 2 May 2008, p 613). Namely, Cumbria Waste Management Ltd and Lakeland Waste Management Ltd v Baines Wilson [2008] EWHC 786 (QB), heard in the Birmingham Mercantile Court by HHJ Frances Kirkham. In Malmesbury, the Earl strangely conceded (along with his opponents) that the judge should hear the offers that each had made to the other at the mediation.
As a direct result of that, Mr Justice Jack found that the Earl's position at the mediation had been wholly unreasonable, and based part of his adverse costs sanction package on that. It is fundamental to that decision that it was not the judge who peered uninvited behind the veil normally drawn over without prejudice offers exchanged at mediations, but both parties who invited him there by specifically
