- Berkeley Square Holdings and others v Lancer Property Asset Management Ltd and others [2020] EWHC 1015 (Ch): shedding significant new light on some of the exceptions to the without prejudice rule.
Confidentiality is one of the most vaunted attributes of mediation. One important benefit of this is the ability of parties to speak freely in their negotiation safe in the knowledge that what happens in the mediation, stays in the mediation. In particular, mediators often assure parties that matters disclosed by parties in the heat of the battle cannot be led in evidence in any consequent litigation. But the issue is not so clear cut. There is no absolute bar on evidential disclosure as to what took place in the mediation. No special mediation privilege exists in England and Wales and no bespoke statutory provisions governing confidentiality in mediation exist (except in EU cross border matters under the Cross Border Mediation (EU Directive) Regulation 2011, regs 9 & 10).
Contractual confidentiality provisions
