Re E (A Child) (Mediation Privilege): Matters discussed in mediation should not be disclosed in Hague application

Image: Public Domain, via Piqsels

A quick post (give me a break, I've already written one today) on a case dealing with an important subject: mediation privilege.

Re E (A Child) (Mediation Privilege) concerned a mother's application for the summary return of her child to the USA. The judgment related to the issue of whether matters discussed between the parties in mediation concerning child arrangements should be disclosed in connection with the application. Essentially, the mother sought to exclude those matters, and the father sought to include them.

For the purposes of this post I do not need to go into the details of either the mediation or the alleged wrongful retention of the child.

It was argued on behalf of the father that the discussions between the parties during mediation were relevant to the defences that he raised under the Hague Convention (including consent and acquiescence), and that in the absence of an ability to rely on the detail of those discussions he may be inhibited in establishing his defence and in his ability to establish that factual matters advanced by the mother in her evidence are, in fact, untrue. It was asserted that reference to the discussions within mediation may well be the only way that a parent can establish the necessary evidence to found their defence, and as such, it would not be in the interests of justice or in the interests of the particular child to prevent him from doing so - excluding this material would deny the father a fair trial.

Hearing the case Mr L. Samuels QC, sitting as a Deputy High Court Judge, set out the law on mediation privilege, i.e. that discussions in mediation are privileged, and that there are several exceptions to this rule, for example "the very unusual case where a statement is made [in mediation] clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child."

The father did not seek to argue that one of those exceptions applied here. Instead, he proposed that mediation privilege should give way to the wider interests of justice, his right to a fair trial and a simple test of relevance.

Whilst the judge obviously acknowledged that there is a public interest in the court being able to 'get at the truth', parties must be free to discuss in mediation "candidly all options for settlement and 'think the unthinkable' without fearing that their words will be used against them in any subsequent litigation." The 'without prejudice' nature of the discussions is as between them and only their waiver or consent could operate to remove the attached privilege.

It therefore followed that the mother's application to exclude reference to the discussions within mediation from the evidence must succeed, and that the father's application must fail.

The full judgment can be found here.