Mediators will be pleased to find judges taking the broad view of ‘without prejudice’ privilege, says Tony Allen
- ‘Without prejudice’ privilege implications for mediation: Willers v Joyce and others, and Briggs v Clay and others
Mediators always reassure parties that what happens in a mediation remains inaccessible to a court—both if the claim does not settle, but also when it does. ‘Without prejudice’ (WP) privilege applies automatically to what transpires during mediations, as it does to any genuine settlement discussions. The privilege belongs to the parties only, and the mediator has no right to prevent parties from choosing to waive that. Some case law has suggested that contractual confidentiality created when a mediation agreement is signed also protects mediation exchanges from exposure in court (and anywhere else) and that the mediator too can invoke a remedy for breach besides the parties.
Recent cases in the Business and Property Courts have revisited the limits of WP protection. One—Willers v Joyce and others [2019] EWHC 937 (Ch)—looks specifically at the aftermath of an unsettled mediation, though it only considers privilege
