Mediation is usually undertaken \u201cwithout prejudice\u201d and is thereby privileged from disclosure. This is an exception to the general principle that an admission, adverse to the interests of a party to litigation, is admissible as evidence of the admitted fact.\u00a0 Public policy supports mediation and the courts are likely to be vigilant in upholding the integrity and confidentiality of the mediation process.<\/p>\n
The principle of \u201cwithout privilege\u201d is upheld in standard mediation arrangements and in enhanced by the terms of confidentiality clauses in formal mediation agreements.\u00a0 The principle\u00a0protects verbal and written communications made for the purpose of settlement. This includes correspondence, offers and concessions, position papers, communications between the party and the communications for the purpose of persuading parties to mediate.<\/p>\n
Certain communications are not privileged. Open offers, expressly so made, are not protected.\u00a0 Offers that are \u201cwithout prejudice except as to costs\u201d and communications not aimed at settlement of the dispute are not privileged.<\/p>\n
Communications made in the course of mediation may be looked at to determine when there is a dispute as to whether there has been a settlement at all.\u00a0 The facts or circumstances by which the alleged contract is entered is relevant when there is a dispute as to the existence or otherwise of a contract.\u00a0 The mediation agreement itself is not usually protected by the \u201cwithout prejudice\u201d principle.<\/p>\n
Privilege may be waived by all parties together.\u00a0 This may take place implicitly in some circumstances. The without prejudice principle benefits the parties. The privilege is not that of the mediator.\u00a0 If the parties have waived privilege, then the mediator may not rely on it.<\/p>\n
Mediation agreements will generally contain confidentiality clauses.\u00a0 They may be enforced by an injunction in certain circumstances.\u00a0 Damage may also be available for breach. In the absence of express clause, it is likely that an implied clause, obligation of confidentiality will arise.<\/p>\n\n
\n <\/div>\n\n","protected":false},"excerpt":{"rendered":"
General There is no comprehensive statute dealing with mediation in Ireland at present. Mediation arrangements may be embodied in a contract between the parties. It is possible for a contract to provide for mediation before the dispute develops. \u00a0Mediation agreements are most commonly entered after the dispute has arisen. Mediation bodies may provide a model […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[321],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4334"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4334"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4334\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4334"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4334"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4334"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}