Just How Confidential Is A Confidential Mediation?

The decision in Farm Assist Limited (In Liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC) is an important one for anyone involved in Mediations.  A mediation took place in June 2003 resulting in a settlement agreement being signed.  However, Farm Assist Limited ("FAL") later sought to have this set aside on the basis that it claimed to have entered into it under "economic duress".  In the court action, The Secretary of State for the Environment, Food and Rural Affairs ("DEFRA") called the mediator to give evidence. 

The mediator wrote to DEFRA to advise that given the time that had elapsed since the mediation, coupled with the fact that she had not taken any notes and had no recollection of the one day mediation, any evidence that she would give would not be of any merit to either party. The mediator also relied on the terms of the parties' Mediation Agreement in relation to the issues of privilege and