When may a party rely in evidence on events occurring or documents supplied during a mediation?

Parties engaged in a mediation process are entitled to Without Prejudice Privilege in relation to all documents supplied and all matters said.

That privilege is waived when, without limitation:

• the parties engage in criminal acts.
• the parties engage in misleading and deceptive conduct which becomes subject to separate litigation.
• the matter settles in which case the parties are entitled to rely on the signed agreement in any subsequent enforcement action.
• the mediation process itself becomes subject to litigation - this can arise if say for instance costs are in issue an one party did not attend the mediation or in limited circumstances participate in the mediation in good faith.

That privilege does not apply to instance to documents which should and ought to be discovered in due course in any event.

Please visit our arbitration website for more information in relation to

• Without Prejudice Privilege
• Legal Professional Privilege

• Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Export Services Inc (No 2) [2011] NSWCA 294