Parties in dispute will generally hear mediators and lawyers say that the information discussed during a mediation is “confidential” and / or “without prejudice” but what does that really mean?

Unless all parties agree otherwise, a Court permits, or a law compels the disclosure, what is discussed during a mediation (and any concessions made) is to remain within the walls of the mediation. As a result, a party who makes a certain concession at mediation is not then able to have that concession placed before the Court via Affidavit material or tendered into evidence by their cross-examination against them. The reason for such a rule is that it promotes the resolution of legal disputes by affording litigants the protection of being able to “speak freely” for the purposes of the mediation, and make concessions in the spirit of dispute resolution / compromise. There are, however, always exceptions to the rules and these ought to be discussed with your individual mediator and / or lawyer if you have concerns about what you are about to disclose or concede.

Additionally, information that you provide to your mediator in private sessions ought to not be revealed to your opposition by the mediator without your prior approval. You should always inform your mediator of the fact that things mentioned to he / she are not to be disclosed unless you specifically consent to this occurring.

Another issue that arises from time-to-time and was recently the subject of a decision of the High Court of Australia is in respect of legal professional privilege and relevantly, how a party can be taken to have “waived” such privilege.

Legal professional privilege (or client legal privilege) is a rule of law that generally protects what a litigant informs their solicitor within the course of obtaining legal advice within a proceeding or a reasonably contemplated judicial or quasi-judicial proceeding.

The reason for such a “rule” in Australia includes the following:

  • to encourage frank discussion and full disclosure of information by a client to a lawyer (with a view of benefiting the client in obtaining complete and accurate advice);
  • it can discourage litigation by parties obtaining complete advice and / or by promoting alternate dispute resolution (mediation); and
  • it assists with the protection of a client’s privacy.

Notwithstanding the above comments, parties can waive such privilege by their conduct, which is usually the disclosure of the relevant material. Therefore, parties must speak to their lawyers and obtain specific advice as to whether their conduct will amount to such a waiver, which could adversely affect their case.

As noted above, disclosure by accident has recently received the consideration of the High Court of Australia on 6 November 2013 in the decision of Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors [2013] HCA 46 where the High Court held that the Supreme Court of New South Wales erred by not ordering the return (and destruction of any electronic copies) of 13 privileged documents which had been inadvertently disclosed to them by the appellants’ solicitors during a court-ordered process of discovery.

A summary of the decision from the High Court’s website can be obtained here.