Mediators cited as a witness at court?!


#1

A year ago my colleague and I facilitated a mediation session. The only complaint was a barking dog. Relationships between both woman had broken down due the dog barking and disturbing her sleep pattern. The session was successful. They agreed they would approach each other direct and exchanged mobile numbers should there be any problems in future. The dog owner obviously could not promise her dog would never bark but both parties shook hands and felt they benefitted from talking things through.

A year later I receive a call from a local solicitor stating he will be citing me for court as his client has proceeded with Civil Court Action re her neighbours dog continually barking. I explained that mediation is confidential and anything discussed at the session remained confidential and our guidelines clearly state that anything discussed within a mediation session cannot later be used in court. I also explained that i remain impartial throughout. He said that he was given a copy of the agreement letter by his client and no where on my later did it state i couldn’t be asked to give evidence in court and he would be citing me regardless.

His client was clearly made aware at the time of the session of confidentiality and that anything said within mediation cannot later be used in court etc but has proceeded with a Civil Court Action regardless. Falkirk Council legal team state it is highly unlikely i will be asked to give evidence. Nonetheless i could be asked to speak at court. I obviously can only speak to faciliating the session, the mediation process and I will not divulge any other details.

Have any other mediators experienced this? What we will be doing in future from now on is clearly stating at the bottom of our agreement letters that anything said within mediation cannot later be used in court. We do specify this clearly on our printed guidelines and reiterate this to clients however we will be adding something to that effect on our agreement letters as soon as possible.

Any views / thoughts / experiences are welcome!


#2

Hi Shirley- Ann,

Thanks for posting! I have never come across this or had any experience of being challenged around giving evidence in court regarding the content of a mediation session. It sounds like you and your service is doing everything they can to ensure that what is discussed in mediation remains confidential.

I’m wondering if other mediators have any advice or guidance on how to manage this issue and what the law says about what is discussed in mediation??


#3

Hi Shirley-Ann,

It’s an interesting issue that you raise. While I have no personal experience of being cited to give evidence in relation to a mediation, I am aware of colleagues who have.

My understanding is that should the clients and/or their lawyers not respect the confidential nature of a mediation, then it is likely that a judge or sheriff would.

It is clearly essential that clients are made fully aware of their responsibilities regarding confidentiality and perhaps a signed mediation agreement or separate confidentiality agreement would be helpful.


#4

Hi all.

Interesting question and certainly very topical, as confidentiality in mediation is a hot issue at the moment. Right now, I understand that unless a watertight mediation agreement is signed or the mediators are accredited and covered by relevant legislation, the risk of citation will remain. If the mediator is a non-lawyer and the mediation agreement is loose, then whatever is stated in mediation may not be privileged, and therefore, may be referred to in evidence. It’s vitally important, therefore, to ensure that the mediation agreement is clear and robust, and that parties are in no doubt about the issue of confidentiality before the sessions begin.

Best,

Scott