Discussions in mediation remain confidential, legally privileged and without prejudice and may not be used in evidence against each other should we go to court, though financial facts disclosed in mediation are open and may be used.

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Confidentiality is an integral principle of family mediation. Proceedings in mediation are confidential both as between the parties and as between the parties and the mediator.

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As a result, even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality save where it is necessary in the interests of justice for evidence to be given of confidential matters. In which case the court will order or permit that evidence to be given or produced.

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In line with the above, clients are not permitted to record any conversations or any part of a meeting on any device (including mobile phones).

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In addition, family mediations are conducted on a without prejudice basis so that there is a “without prejudice” privilege, belonging to the parties to the mediation (as opposed to the mediator), which significantly restricts your entitlement to disclose what happened and/or was said or done during the mediation. In other words, the communications are “legally privileged”. This is a privilege that clients can waive by agreement or by order of the court in exceptional circumstances. However, it is subject to the issue of confidentiality.

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Some issues will be subject to both the without prejudice privilege and confidentiality. The parties cannot waive confidentiality without the consent of the mediator or an order of the court.

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In addition, there may be circumstances in which one participant to the mediation shares privileged information with the mediator (for example a letter of advice from his/her solicitor). That information is privileged and belongs to the party disclosing it.

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The mediator cannot impart that privileged information to the other participant in the mediation or to the court unless the disclosing party waives that privilege or there are exceptional circumstances or an order of the court.