A couple going through a separation will typically be encouraged (where appropriate) to attend mediation as an alternative route to try and reach an agreement in respect of their finances and/or child arrangements. However, in some cases mediation discussions can break down and a resolution cannot be reached in this way. When this occurs, a person may choose to make an application to the Court to determine the outcome instead.

All discussions and agreements that are made during mediation sessions are without prejudice. This means that these discussions are not open to the Court to consider throughout the course of any Court proceedings. Therefore, discussions that are had in mediation cannot be relied upon in Court.

The case of Re E (A Child) 2020 concerned a mother who had made an application for her child to return and live permanently in the USA. The mother and child first moved to the USA in 2019. The father provided his consent for the child to move with the mother on the basis that the child would be returning permanently to the UK after a period of two years. The father stated that this is the agreement that was reached during the course of the parties’ mediation sessions. However, issues between the parents began to arise in 2020 which resulted in the mother making an application claiming that their child was now habitually resident in the USA and should continue living there on a permanent basis.

The father wanted to rely upon the mediation discussions where the agreement for the child to return to the UK had been made. It was the father’s position that the without prejudice rule should give way to the wider interest of justice and his right to a fair trial. The father therefore applied to have the mediators full notes disclosed within these proceedings. The mother cross-applied to have these notes struck out.

The case went before Deputy Judge Samuels and in his judgement he discussed the reason why mediation is without prejudice. He determined that discussions in mediation are without prejudice because ‘unless parties can speak freely and uninhibitedly, without worries about weakening their position in contested litigation if that becomes necessary, the conciliation will be doomed to fail’.

The Judge went on to deliberate the circumstances in which mediation discussions should be disclosed within Children Act Proceedings. He referred to the case of Re D (Minors) (Conciliation: disclosure of Information) 1993 which held that mediation discussions are to be disclosed ‘in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child’.

As the father in this case had failed to establish that the mediation discussions would reveal any such statement, his application to disclose the mediation notes was dismissed.

A copy of the full judgment can be found here.

Blaser Mills’ Family & Divorce team are highly experienced solicitors who can advise you on your respective rights and obligations. Should you require further information on this matter, or any other advice concerning family or divorce matters, please contact us.