Welcome to the final instalment of my Mediation blog as we see the end of Mediation Awareness week!
Today I am going to focus on the fact that anything said at a Mediation is Without Prejudice, what this means, and why it is a good thing.
The Without Prejudice rule was helpful defined by Lord Griffiths in Rush & Tomkins v. GLC [1989]: “the contents of the without prejudice correspondence … will not be admissible to establish any admission relating to the party’s claim.“
In plain English, this means that if you make an admission, or say something relating to your case in a mediation, that cannot be used against you later in the proceedings.
The principle is founded upon the public policy of encouraging litigants to settle their differences, rather than litigate them to a finish. The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing, from being given in evidence.
Why is this a good thing? It can seem at first sight that the Without Prejudice rule could result in meaningless conversation, but only if you view it in terms of progressing towards a trial. If your focus is achieving a settlement, then all parties being covered by the rule means that people can begin to put forward offers, and discuss options, without it being taken as a sign of weakness, or risking putting their case at risk.
The Without Prejudice rule enables a party to make the important step of putting forward an offer. That offer, and subsequent offers, will not be seen by a judge at trial, and the other party cannot say ‘they must accept responsibility because they made us an offer‘.
The Without Prejudice rule also goes hand in hand with the confidentiality principle of mediation, and both help to encourage and facilitate candid settlement discussion, focusing on ‘what can we live or work with?‘ rather than placing a bet on the final outcome of litigation.
In summary
So, in summary of the week’s worth of blogs: Mediation is in a number of respects a unique forum for resolving disputes. The independence of the mediator provides some much needed neutral ground and a safe space to begin discussion, with the mediator’s help. Because the process is non-binding, the people involved can test-drive different ideas, arrangements, and proposals. The confidentiality and without prejudice nature of everything said at a mediation gives parties protection and allows them to speak candidly. The fact that mediation is voluntary gives puts the parties firmly back in the driving seat of the decision-making, and they jointly get to choose an outcome they can both live with.
There are many scenarios that, quite regardless of the strengths of a party’s case, it is simply not worth pursuing to a trial, with all the cost, risk, lost resources and uncertainty that comes with it. The above factors all combine to give settlement the best possible chance, and a way out from the perils of litigation.
Toby Walker is an accredited mediator and is a member of the ADR Group Panel. For more information about mediation please visit: http://www.hedgeslaw.co.uk/site/business/commercial-mediation-solicitors/
Mediation is an increasingly popular way to settle disputes outside of the court process. It's being used to resolve difficulties across a wide variety of areas including business, employment and property disputes. It's success is now well documented and the courts actively encourage people to try mediation before litigation.
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