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Monday, 23 May 2005

CONTENTS OF FAILED MEDIATION MUST BE KEPT SECRET


While the IPKat was away last week LexisNexis' Butterworths All England Direct subscription service picked up Venture Investment Placement Ltd v Hall, a Chancery Division decision of Deputy Judge Robert Reid QC on Monday 16 May. It was only a small case, but the point was an important one.

Mediation works ... for the mediator, at any rate

The parties were involved in proceedings by which Hall sought to recover certain sums from VIP. At this point VIP applied for interim injunctive relief to stop Hall referring to or disclosing any matters discussed in the course of an unsuccessful mediation in which the parties had participated. VIP alleged that, since Hall had already made certain disclosures that were in breach of the mediation's confidentiality provisions, an injunction was needed to restrain any further breaches of confidence.

Robert Reid QC granted VIP injunctive relief. Since the purpose of mediation proceedings was to let the parties be frank and open, it followed that what each of them revealed in the course of a mediation was not to be used by the other side if the mediation failed.

The IPKat thinks that episodes like this will become increasingly common as judicial case management steers an increasing number of litigants towards mediation rather than trial. But he also wonders whether a party can use mediation strategically, disclosing information specifically so that the other side won't be able to make use of it later. Merpel's not sure about this, though. Surely, if mediation breaks down and a trial ensues, if the information in question is both confidential and relevant to the issue before the court, it would be possible to get a disclosure order for it anyway.

More on mediation here, here and here

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