Academic journal article The International Sports Law Journal

Safeguarding Confidentiality in Mediation

Academic journal article The International Sports Law Journal

Safeguarding Confidentiality in Mediation

Article excerpt

Introductory: Sport and Mediation

More and more sports disputes are being settled extra-judicially by mediation: an increasingly popular form of alternative dispute resolution (ADR), which has been defined by the Centre for Effective Dispute Resolution, a leading ADR provider, based in London and generally known by its acronym as CEDR, as follows:

"A flexible process conducted confidentially in which a neutral person assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution."

One of the hallmarks of the mediation process, as noted in this definition, is its confidentiality. And this is particularly of interest to the sports world, which, generally speaking, prefers not "to wash their dirty sports linen in public." And, furthermore, as Bernard Foucher, President of the French Institute of Mediators and a Member of the Court of Arbitration for Sport (CAS), which is based in Lausanne, Switzerland, has said: "within the family of sport." (1) Despite this incontrovertible fact, the take up of the CAS Mediation Service, introduced in 1999, has been rather slow to date! But it is expected to grow in the foreseeable future.

And, it may be noted, en passant, that sports bodies are not the only ones encouraging ADR, especially mediation, but so also are the Courts, as evidenced by a speech given by the Lord Chief Justice of England and Wales, Lord Phillips of Maltravers, in New Delhi, India, on the occasion of the opening of the Indian Mediation Centre earlier this year. (2)

Apart from confidentiality, which is the subject of this article, mediation offers flexibility, speed, inexpensiveness, and the all-important 'without prejudice' feature and advantage. This means that, if the mediation is not successful--and most mediation providers claim an 80% success rate!--whatever is said, admitted or conceded during the course of the mediation, cannot be used and held against the party concerned in any subsequent arbitration or court proceedings.

Of course, the veil of confidentiality can be lifted if both parties to the mediation agree to do so. But what is the position if one party wishes to waive such 'privilege', but the party refuses? This was the issue raised in the recent English Queens Bench Division of the High Court case of Cumbria Waste Management. (3)

The Cumbria Waste Management Case

To put this case into context, mention needs to be made of the earlier case of Earl of Malmesbury v Strutt & Parker. (4) In that case, the Earl agreed, together with his opponents, in subsequent Court proceedings, that the Judge should hear the offers that each had made to the other during the mediation. As a result of these disclosures, Mr Justice Jack, who heard the case, found that the Earl's position at the mediation had been wholly unreasonable, and, therefore, based part of his adverse costs ruling on that fact, following the landmark decision of the Court of Appeal on costs in Dunnett v Railtrack, (5) in which Railtrack unreasonably refused the Judge's suggestion in that case to mediate, and were, accordingly, condemned in costs, even though they won the case and contrary to the normal rule that the successful party is, generally speaking, awarded their legal costs! Incidentally, it may be added that Court-sponsored mediation raises the question of whether a reluctant party, who agrees to it, has--as is their right received a fair hearing under article 6 of the European Convention on Human Rights of 1950, but that is a complex subject in its own right for a separate article on another occasion! Returning to the present article, in Malmesbury, it should be noted that it was not the Judge who peered, as it were, uninvited behind the veil normally drawn over 'without prejudice' offers made in the course of mediations, but both parties who invited him to do so by expressly waiving their privilege on this matter. …

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