Is There a Specific Mediation Privilege?

Is There a Specific Mediation Privilege in English Law?

The Short Answer

In English law there is no standalone statutory “mediation privilege” comparable to the specific legal privilege that protects communications between lawyers and their clients. Mediation communications are instead protected by a combination of two overlapping but legally distinct mechanisms: the without prejudice rule and the contractual duty of confidentiality created by the mediation agreement. Understanding how each of these works, and where their limits lie, is essential for anyone who wants to participate in commercial mediation with genuine confidence.

This page is part of the Commercial Mediation Knowledge Hub. If you need a commercial mediator or mediation advocate see my commercial mediator page or my mediation advocacy page.

The Without Prejudice Rule

The without prejudice rule is a long-established principle of English law that protects genuine settlement negotiations from being used as evidence in court proceedings. Where parties are engaged in discussions aimed at resolving a dispute, anything said or written in the course of those discussions cannot be disclosed to, or relied upon, in any subsequent litigation relating to the same dispute. The protection applies regardless of whether the parties explicitly label their communications as “without prejudice”, provided the communications are genuinely aimed at settlement.

In commercial mediation, the without prejudice rule applies automatically to everything said in joint sessions, in private sessions with the mediator, and in any written communications prepared for the purposes of the mediation. A party cannot extract a statement made in mediation by another party and deploy it as evidence at trial. What is said in the mediation room stays in the mediation room, as a matter of law and not just convention.

The without prejudice rule serves a vital function in mediation. It allows parties to speak frankly about their real concerns, to acknowledge weaknesses in their position, to make concessions as part of exploring settlement, and to propose creative solutions that they would not put forward in open correspondence, without any of this being used against them if the mediation fails and the case proceeds to trial. Without this protection, candid negotiation would be impossible.

Contractual Confidentiality Under the Mediation Agreement

Alongside the without prejudice rule, almost all commercial mediations are governed by a written mediation agreement, typically provided by the mediator or the appointing institution, which imposes express contractual obligations of confidentiality on all parties. This contractual confidentiality extends further than the without prejudice rule in some important respects.

The without prejudice rule specifically prevents communications from being used as evidence in court. Contractual confidentiality goes further by imposing a positive duty not to disclose mediation communications to third parties at all, whether or not those communications would be admissible in court. The two protections therefore operate in parallel: the without prejudice rule provides evidential protection in litigation, and the mediation agreement provides a broader duty of confidentiality that extends beyond the litigation context.

The mediation agreement also typically provides that anything disclosed by one party in a private session to the mediator will not be disclosed by the mediator to the other party without express permission. This “mediator confidentiality” within the mediation is an important and practical protection that allows parties to speak freely with the mediator without fear that sensitive information will be passed directly to the other side.

Why the Distinction from Legal Professional Privilege Matters

Legal professional privilege, particularly litigation privilege and legal advice privilege, is a stronger protection than either the without prejudice rule or contractual confidentiality in one important respect: it is absolute. A document protected by legal professional privilege cannot be disclosed even by court order in the same proceedings. There is no equivalent absolute protection in mediation.

Both the without prejudice rule and the contractual confidentiality of the mediation agreement have recognised exceptions. The courts can in principle override them in exceptional circumstances where justice requires. This does not mean that mediation communications are routinely at risk of disclosure: the courts are strongly protective of confidentiality in mediation and treat exceptions as genuinely exceptional. But it does mean that mediation participants should understand they are not operating under the same absolute shield as legal professional privilege provides for lawyer-client communications.

When Confidentiality Can Be Overridden

The circumstances in which courts have permitted or may permit disclosure of mediation communications are narrow and well-defined. They include the following situations.

Where there is evidence of fraud, serious criminality, or deliberate concealment of wrongdoing, mediation cannot be used as a vehicle to hide illegal activity. An admission in mediation of deliberate tax evasion, fabrication of accounts, or similar serious misconduct may not be fully protected.

Where one party claims that a settlement agreement was reached and disputes its terms or its existence, limited disclosure of what was discussed may be necessary to resolve the dispute about whether and what was agreed.

Where a party alleges that they were induced to settle by a fraudulent misrepresentation made during the mediation, the information disclosed in mediation may be relevant to whether the settlement can be set aside.

Where there are allegations of mediator misconduct, as addressed in Farm Assist Ltd v Secretary of State for the Environment (No 2) [2009] EWHC 1102 (TCC), the court may permit some disclosure in the interests of justice, though this too is tightly controlled.

Where both parties consent to waive confidentiality, the protection can of course be removed by agreement.

Outside these exceptional circumstances, the protection is robust. Courts will not order disclosure of mediation communications simply because one party thinks what was said would help their case. The strong public policy in favour of encouraging mediation means that the confidentiality of the process is protected vigorously.

The Position of the Mediator

A further aspect of the absence of a specific mediation privilege is that the mediator is not formally a compellable witness in the same way that a solicitor cannot generally be compelled to give evidence about privileged communications with a client. In practice, mediators are very rarely called to give evidence about what was said in mediation. The courts are extremely reluctant to allow this, both because of the strong public policy in favour of mediation confidentiality and because compelling mediators to give evidence would fundamentally undermine the candour that makes mediation work.

The mediation agreement typically provides expressly that the mediator will not be called as a witness in any subsequent proceedings relating to the dispute. While the enforceability of such provisions has been tested in a small number of cases, the courts have generally been supportive of the principle that mediators should not be compelled to testify about what was said in private sessions.

Practical Implications for Mediation Participants

For business owners and directors preparing for commercial mediation, the practical implications of the current legal position are as follows. The without prejudice protection and the contractual confidentiality of the mediation agreement provide strong and reliable protection for everything said in mediation. In the vast majority of cases, parties can speak frankly, explore creative solutions, and make concessions without any realistic risk that what they say will be used against them in court. The protection is not absolute, but the exceptions are genuinely exceptional and are confined to situations involving serious wrongdoing or abuse of the process.

The absence of a specific statutory mediation privilege in English law is occasionally cited as a weakness in the mediation framework, and there have been periodic calls for legislation to provide a more certain and absolute protection. However, in practice the existing protections work well and the courts consistently enforce them robustly. The lack of a specific privilege has not materially impeded the effectiveness of commercial mediation in England and Wales.

Published Resources

My book Winning at Commercial Mediation: A Business User’s Guide addresses confidentiality and the without prejudice rule in detail, including how each protection applies in practice, the circumstances in which confidentiality may be overridden, and how to participate in commercial mediation with confidence in the protections available.

See all books.

Frequently Asked Questions

Can what I say in mediation be used against me in court?

In almost all circumstances, no. The without prejudice rule prevents anything said in the course of genuine settlement negotiations, including commercial mediation, from being used as evidence in subsequent proceedings. The contractual confidentiality of the mediation agreement reinforces this protection. The exceptions are narrow and confined to situations such as fraud, serious criminality, or allegations that the settlement itself was procured by misrepresentation.

Is the mediator protected from being called as a witness?

In practice, yes. Courts are very reluctant to compel mediators to give evidence about what was said in mediation, and mediation agreements typically provide expressly that the mediator will not be called as a witness. While this protection is not absolute in the same way as legal professional privilege, it is reliably enforced.

What is the difference between the without prejudice rule and confidentiality in mediation?

The without prejudice rule is a rule of evidence that prevents mediation communications from being used as evidence in court. The contractual confidentiality in the mediation agreement imposes a broader positive duty not to disclose mediation communications to third parties at all, whether or not they would be admissible in court. The two protections overlap but are legally distinct.

Would it be better if English law had a specific mediation privilege?

A specific statutory mediation privilege would provide a more certain and absolute protection than the current framework. Calls for such legislation have been made periodically. In practice, however, the existing without prejudice and contractual confidentiality protections work effectively and are robustly enforced by the courts, so the absence of a specific privilege has not significantly impeded mediation in England and Wales.

Get in Touch

If you need a commercial mediator or representation at mediation as a mediation advocate, I would be glad to help.

Call 020 4538 0246, use the contact form below, or book a call directly.

Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content may not be legally accurate for your specific situation. You must not rely on anything on this page in respect of your legal rights. The law in this area relates to England and Wales only. Always seek independent legal advice from a qualified specialist before taking or refraining from taking any action. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice on your situation, contact me here.

Is there a specific Mediation Privilege?