“without prejudice” privilege and mediation
Recent decisions have confirmed that common law and statutory exceptions to the “without prejudice” rule will not apply to mediation in certain circumstances. Importantly, the integrity of the mediation process is strengthened by confirmation that exceptions to the “without prejudice” rule will apply where a party acts fraudulently during mediation, where false or misleading representations are made in reaching settlement, and where admissions made in mediation may be relevant to matters in dispute in another proceeding, for example.
Here is a great article (below) which has been prompted by the failure of some mediators to ensure that outcomes are shaped by the parties in the light of the strengths and weaknesses of their positions.
It reminds me that mediators need to be highly professional, that lawyer mediators have a special contribution to make, and that mediation can be effective when the mediator is alert, dogged, and unafraid to help the parties pick their dispute apart in order to see what outcomes are feasible/warranted by the evidence.
Feel free to let me know what you think.