The previous article in this two-part series looked at when without
prejudice rule immunity (WPRI) could be said to cover discussions between two
people; suggested that the point where WPRI applies was the point where
mediation confidentiality applies; and pointed out the present uncertainty of
the common law on these subjects at present. This article works through the
case study which concluded the previous article. It does this by considering
the legal issues which arise from mediation between a married couple, where the
parents of one of them had put money into the purchase of their family home.
Can WPRI be overridden so that evidence from mediation be put before the court;
what is the evidential value of an admission made by the husband’s parents; and
how does the proximity rule (considered in the first article) apply here? Even
though the chancery issues which arise from all this, can a mediator help to
resolve the pre-trial case management issues?
The article starts
and ends with the question: is there a useful symbiosis between court case
management and mediation; and, can this be developed, even though – perhaps
especially though – litigation is inevitable? The full version of this article appears in the April 2015 issue of Family Law.
Online subscribers can access the full version of the article here.