UPDATE: MEDIATION PRIVILEGE & THE EU MEDIATION

DIRECTIVE: AN OPPORTUNITY?

December 2008

Article:

An article by David Cornes has been published under the title: "Mediation Privilege and the EU Mediation Directive: an Opportunity?" (International Journal of Arbitration, Mediation and Dispute Management, November 2008, Volume 74, Number 4). To read the article in full, click here >>

Issues:

An up to date study looks at the present state of the law in England and Wales as to privilege in mediation and speculates about how the EU Directive might be implemented as to privilege.

Quick overview:

This article (click here >>) looks in depth at the cases in which privilege in mediation has been considered; it also looks at the eight exceptions that might enable a court to receive evidence as to what went on in a mediation that was otherwise covered by the without prejudice rule. Using that analysis, the article then considers the very low level of privilege required by the EU Directive for cross-border mediations only, namely, some limited privilege for mediators and mediation service providers (such as CEDR) but none for the parties themselves. The Directive permits, but does not require, more wide ranging provisions for privilege and in like manner permits, but does not require legislation at all in relation to domestic mediation. Against all that background, the article considers how the implementation of the Directive in England and Wales before May 2011 might be crafted to enhance and secure the important place of mediation in the dispute resolution armoury both within England and Wales and in cross-border mediations.