THE BASICS: WHAT DOES “WITHOUT PREJUDICE” MEAN AND WHEN DO I NEED TO USE IT? – Gowling WLG

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1. Not directly about mediation but I found this piece to be a very clear exposition of Without Prejudice, the details of which confuse many people, even lawyers!

   Of particular note is what is said about instances, under the common law, when otherwise Without Prejudice material can be revealed to a court. There are definite parallels here with the content of a mediation – which after all is a without prejudice process. Note then that reasonableness of a settlement and clear impropriety have been used by the courts to lift without prejudice exclusions. It is legally untested ground, but that could mean that if a disputant has issues with the mediator’s services, the confidentiality veil could be lifted in any legal challenge to the validity of the settlement contract or the contract between disputant and mediator.

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