Mediation And The Limits Of Without Prejudice Privilege

Mediation is a common way to resolve disputes and one of its advantages is that any discussions are undertaken on a without prejudice basis, so that parties can speak freely. Indeed, the without prejudice privilege that attaches to settlement discussions is an established principle of English law.

The recent decision in Pentagon v Cadman Ltd considered the extent to which this privilege applied in context of mediation. While the aim of this rule is to protect discussions from being disclosed, it is important to recognise that it is subject to a number of exceptions, as established in previous decisions including Unilever plc v The Proctor & Gamble Co and Oceanbulk Shipping v TMT.