Parties usually think of mediation and think of a confidential, without prejudice process. They are right to do so. Rarely is either party likely to want to look behind the settlement agreement reached during a mediation. The recent case of Farm Assist Limited v The Secretary of State for the Environment, Food and Rural Affairs may be unusual in that regard.
In Farm Assist, the mediation agreement contained an express clause that said the mediator would not be called as a witness “in relation to the dispute”. She must have thought she was protected by that. I would have. Therefore, it must have come as a shock to the mediator that she was asked to give witness evidence and, apparently, had very little control over this once the parties agreed between themselves to waive the without prejudice privilege and confidentiality.
In practice, unless things go wrong, I’m not sure the parties usually give much thought to the without prejudice privilege and confidentiality that attaches to the mediation. They know it is there and rely upon it. We don’t know why Farm Assist wanted to set aside the settlement agreement, or what its allegation of economic duress consisted of. Whatever the details, it must go beyond “hard bargaining”, which is all part of the “cut and thrust” of mediation or any negotiated settlement. It is only in exceptional cases that the court will look at the circumstances in which the agreement was reached.
Do parties ever think about these issues in adjudication?
I’m not aware of any adjudication rules which prevent the adjudicator from being called as a witness in subsequent arbitration or court proceedings. This may be because of the interim nature of the adjudicator’s decision. It was always Parliament’s intention that any challenge to the decision would take place through arbitration or court proceedings (did they expect parties to routinely challenge decisions??). It is possible that they thought that the adjudicator may be needed in this process, however unlikely, unless those proceedings relate to the enforcement of his decision. Indeed, I have given witness evidence in enforcement proceedings, although it is not a routine occurrence. It’s strange to find the boot on the other foot, giving rather than receiving evidence!
Adjudication can also be contrasted with arbitration, where the arbitrator is afforded protection by the Arbitration Act 1996 and most arbitration procudural rules. Equally, a dispute board member is usually appointed on the basis that he will not be called as a witness in any subsequent proceedings.