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Cite as: [1992] SLC 136 (Report)

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SCOTTISH LAW COMMISSION

(Scot Law Com No 136)

Report on Evidence: Protection of Family Mediation

Laid before Parliament by the Lord Advocate under section 3(2) of the Law Commissions Act 1965
Ordered by the House of Commons to be printed
4 November, 1992

The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Davidson, Chairman,
Dr E M Clive,
Professor P N Love, CBE,
Sheriff I D Macphail, QC,
Mr W A Nimmo Smith, QC.

The Secretary of the Commission is Mr K F Barclay. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

SCOTTISH LAW COMMISSION

Item 1 of our First Programme of Law Reform

Evidence

To: The Right Honourable the Lord Rodger of Earlsferry, QC,

Her Majesty's Advocate

We have the honour to submit our Report on Evidence: Protection of Family Mediation.

(Signed) C K DAVIDSON, Chairman

E M CLIVE

PHILIP N LOVE

IAIN MACPHAIL

W A NIMMO SMITH

KENNETH F BARCLAY, Secretary

29 June 1992

Contents

	Paragraph
SUMMARY
PART 1 INTRODUCTION
Scope and origin of the report	1.1
What mediation is	1.4
Structure of the report	1.9
PART 2 THE NEED FOR LEGISLATIVE INTERVENTION
The problem	2.2
Should there be new statutory rules?	2.9
PART 3 THE NEW STATUTORY PROTECTION IN DETAIL
What mediation should be protected?	3.2
Approval of mediators	3.14
What matters should be inadmissible?	3.20
Factual information about sessions inadmissible?	3.31
Results of mediation inadmissible?	3.32
Exceptions to inadmissibility	3.37
Proceedings in which information should be inadmissible	3.38
Inadmissible in all civil proceedings?	3.43
Proceedings relating to children	3.47
Agreement to admit otherwise inadmissible information	3.53
Mediator personally involved in proceedings	3.58
Disputes about mediation agreements	3.59
Other exemptions	3.64
Procedural matters	3.68
Confidentiality and inadmissibility	3.69
PART 4 LIST OF RECOMMENDATIONS	4.0
APPENDIX A Draft Civil Evidence (Family Mediation) (Scotland) Bill	A
APPENDIX B List of those submitting comments on the discussion paper	B

Summary

This report makes recommendations in order to protect from disclosure in court information obtained during the mediation of family disputes. It follows on from the Commission's Discussion Paper No 92 "Confidentiality in Family Mediation", published in March 1991, and takes account of the comments submitted on that paper.

Effective mediation requires those participating to discuss the disputed issues frankly, without fear of what they say being used against them later in court. The uncertainty of the present law as to whether participants in mediation sessions can decline to give evidence about what occurred is regarded as having an inhibiting effect on family mediation.

The Commission recommends the introduction of a new statutory rule which would provide that, subject to certain exceptions, no evidence (direct or indirect) of what occurred during mediation sessions dealing with family disputes should be given in court. Family disputes are defined as disputes:

(1) between individuals about the residence, upbringing, legal representation or welfare of, or contact with, children, or

(2) disputes between spouses or cohabitants (or former spouses or former cohabitants) about matters arising from their splitting up.

The new rule that such evidence should be inadmissible would apply only to sessions conducted by mediators who had been approved by the Lord President of the Court of Session.

It is recommended that there should be exceptions to the new inadmissibility rule. It should not apply:

(a) in any criminal proceedings,

(b) in children's hearings, adoption proceedings and certain other proceedings concerning the welfare of children,

(c) where all those participating in the session (other than the mediator) agree that it should not apply,

(d) where the mediator is pursuer or defender in civil proceedings arising out of the mediation,

(e) where a written agreement resulting from the mediation is challenged, and

(f) in civil proceedings relating to personal injury or damage to property which occurred during mediation.

Part 1 Introduction

Scope and origin of the report

This report deals with whether or to what extent evidence of what occurs during mediation (or conciliation) dealing with family matters can be given in subsequent court proceedings without the consent of all those involved. Our consideration of this topic originated with a proposal made to us by the Scottish Association of Family Conciliation Services (now Family Conciliation Scotland). We decided to investigate this area as part of our work on the law of evidence

^[1]

Confidentiality in Family Mediation

Responses to our discussion paper were received from 27 organisations and individuals, including all those with a major interest in mediation and family litigation. A list of those who responded is given in Appendix B of this report. We are grateful to all those organisations and individuals and have been greatly assisted by their comments and suggestions.

1.3

In preparing our discussion paper we examined the relevant rules of law in many other jurisdictions and we referred extensively to some of these rules in developing our proposals for reform. In this report our main concern is to present, reasonably succinctly, our recommendations for reform. We do not therefore repeat all the background information which is in our discussion paper.

What mediation is

1.4

Mediation or conciliation can be described as a process whereby people in dispute about matters which are or could be the subject of legal proceedings between them are helped to reach an agreement about matters in dispute, or at least to narrow the areas of disagreement between them, with the active intervention of an impartial third party. Two related but different processes are reconciliation and counselling. Reconciliation has as its objective saving the participants' marriage or relationship. Mediation of disputes may also achieve this but that is not its primary objective. Counselling helps the participants reconcile or resolve differences between them which will never be the subject of legal proceedings or have not yet reached the stage of litigious or potentially litigious disputes. Informal mediation by people such as clergymen, doctors or friends has always been available, but formal procedures for mediation of family disputes are a recent innovation.

^[2]

In 1990 new rules of court were made which empowered the courts in actions where custody of, or access to, children is in dispute to refer the litigants to a specified local family conciliation service.

^[3]

^[4]

When the court makes a referral to a family conciliation service the following procedures are adopted. The clerk of court tells the conciliation service which then approaches the litigants to arrange for conciliation to take place. Conciliation takes the same form whether the participants are referred by the court or go voluntarily. It consists of one or more sessions in which the parties and a conciliator are present together. Conciliators may occasionally meet with each party separately. During the sessions the conciliator will try to clarify the areas of dispute, probe their underlying causes, and suggest ways of resolving or limiting the areas of disagreement with the active participation of the litigants. The conciliator remains neutral and does not seek to impose a solution on the parties. The conciliator may sometimes interview children separately in order to find out their views. The parties may also be referred to doctors, social workers or others for additional consultations. A successful conciliation is usually concluded by a written agreement being drawn up which the parties then sign. The conciliation service will inform the court when the conciliation procedures are concluded. This may happen when agreement has been reached or when conciliation proved fruitless because of non-co-operation of one or both of the litigants. The service will also contact the court if more time than that allowed by the court is needed for conciliation. Apart from these contacts no formal report is made by the service to the court.

1.7

The local conciliation services affiliated to Family Conciliation Scotland are at present mainly concerned with disputes relating to custody, access and other matters affecting children. Referrals by the court are exclusively in this area. The services may however expand to take in financial and housing issues, or other services may arise to deal with disputes in these areas. This has happened in England and Wales and some other countries and we have taken account of this possible expansion in our recommendations.

1.8

At present conciliation seems to be the term used in Scotland to describe the procedures outlined above for resolving disputes. However, the term mediation is also being used and is preferred in some other countries. 'Mediation' has the advantage of avoiding confusion between conciliation and reconciliation, the latter being attempts to save marriages in danger of breaking down. In the remainder of this report we shall use the term 'mediation'.

Structure of the report

1.9

Part 2 of the report examines the arguments for and against introducing new statutory provisions protecting what takes place in mediation sessions from disclosure subsequently in court proceedings. It concludes with the recommendation that such provisions should in principle be enacted. Part 3 considers the scope of the recommended new protection in detail and sets out our specific recommendations for reform. Part 4 consists of a list of our recommendations and Appendix A is a draft of the legislation required to implement them.

Part 2 The need for legislative intervention

2.1

This Part examines the present law prohibiting disclosure of information in court proceedings and its application to matters arising out of mediation procedures. It then goes on to look at the arguments for and against introducing new statutory provisions.

The problem

2.2

Generally speaking, people can be compelled to give evidence in court about matters relevant to the issues being litigated and to produce relevant documents unless they can claim exemption on certain legally recognised grounds. The material (facts or documents) is then said to be privileged. These privileges are based on the public interest against disclosure because of the nature of the information or the circumstances in which it was obtained. A person claiming privilege is entitled to refuse to answer questions or produce documents and prevent others from similarly disclosing privileged information or documents in court. The law may also provide, on public policy grounds, that certain information is inadmissible as evidence in legal proceedings.

2.3

The widespread and increasing use of mediation has led to concern about the disclosure of information, or being compelled to disclose information in subsequent court proceedings. The questions that arise are: to what extent (if any) can a mediator who is cited as a witness refuse to give evidence about what happened in a mediation session, whether one participant may give such evidence in spite of objections by the other and whether a participant can be compelled to answer questions designed to elicit such evidence? The existing legal rules that can apply to prevent disclosure of what occurred during mediation are those protecting offers designed to settle disputes or protecting communications between spouses. The courts also have a residual discretionary power to excuse a witness from answering a relevant question but it is confined to quite exceptional circumstances.

^[5]

In order to encourage the settlement of disputes, admissions made by a person in the course of unsuccessful negotiations are privileged and may not be admitted as evidence in subsequent court proceedings.

^[6]

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^[11]

Section 3 of the Evidence (Scotland) Act 1853 which made parties to actions and their spouses competent witnesses provides that a husband or wife shall not be a competent or compellable witness in respect of any matter communicated by him or her to the other spouse during the marriage. This privilege may be claimed by either spouse. However, a third party who had overheard or intercepted the communication or in whose presence it has been made is a competent and compellable witness for either spouse.

^[12]

^[13]

In England and Wales the courts have developed a privilege attaching to communications made in the course of attempts to bring about the reconciliation of estranged spouses.

^[14]

^[15]

^[16]

As the law stands at present it is likely that a mediator called to give evidence in a Scottish court about what occurred during mediation or to produce documents connected with a mediation could not claim privilege and refuse to comply. As Lord Justice-Clerk Ross recently observed:

^[17]

"Under the law as it presently exists, if a conciliator were cited as a witness he or she probably could not claim the right to refuse to answer questions on the grounds of confidentiality. In other words, they could not claim that the information which they had was privileged."

Similarly one of the spouses could very probably give similar evidence even if the other spouse objected to its disclosure. These conclusions are necessarily tentative as we understand that no case has yet involved a mediator being required to give evidence. Nevertheless several mediators have been cited as witnesses and solicitors may feel obliged to cite a mediator where mediation evidence could be material because failure to do so might lead to a claim of damages for negligence.

The lack of protection against disclosure of information obtained as a result of mediation might make the participants reluctant to take part or might inhibit full and frank discussion in the mediation sessions. This in turn could lessen the effectiveness of mediation as a way of settling legal proceedings or avoiding litigation altogether. Another area of concern is that the law does not seem to be in line with the expectations of the participants. Mediation provided by services affiliated to Family Conciliation Scotland is undertaken in terms of that organisation's Statement of Principles of Conciliation. This includes the following:

"4. Conciliation is confidential

Conciliation services regard proceedings of conciliation interviews and related correspondence and records as strictly confidential, except in the case of a criminal offence against children being firmly alleged."

Similar statements are made in the National Code of Practice for Conciliators and Solicitors issued by Family Conciliation Scotland.^[18] Participants are left with the clear impression that anything they say or do during mediation sessions will not be used against them (except where criminal offences against children are concerned). One remedy for this would be for participants to be given an explanation of the existing law on privilege and the lack of protection which it probably affords to mediation sessions. However, doubts about the existing law make that course unattractive. We suggested in our discussion paper that it was urgently necessary that the law should be made clear and predictable.^[19]

Should there be new statutory rules?

If, as seems probable, the law at present does not confer any privilege on matters arising out of mediation should such matters be protected from disclosure in legal proceedings (subject to certain exceptions) and if so by the courts or legislation? There are two conflicting principles involved and it is a question of finding the correct balance between them. The first principle is that where any dispute is being determined by a court all available relevant evidence should be capable of being presented. Litigants may fail to establish their cases or find it more difficult or expensive to establish them if they cannot put certain evidence before the court. Injustice may result. The second principle is that there is a public interest in assisting those in dispute to resolve the issues between them without recourse to the courts or, if they have already embarked on litigation, to be able to settle rather than litigate to the bitter end. In cases where the legal proceedings are being funded wholly or partially through legal aid there is also a public economic interest in settling or avoiding litigation. This second principles lies behind the existing privilege for offers made in the course of negotiations outlined in paragraph 2.4. It is of particular importance in family disputes which often give rise to bitter and protracted proceedings. Mediation or negotiated agreements regarding children will usually have a better chance of working and lead to better long-term relationships between those involved than orders made by the court after contentious litigation.

2.10

The encouragement given to mediation, by the setting up and funding of Family Conciliation Scotland and the affiliated local conciliation services, and the enactment of rules of court providing for referral to conciliation services, indicates that there is public acceptance that mediation has a useful part to play in the resolution of family disputes and should be fostered. A study by the Scottish Office Central Research Unit found that in around half the cases surveyed mediation was effective (ie the participants had been helped by attending and there was an agreement on at least one issue which was working at the time of the survey), ineffective in one quarter and beneficial (helpful but no agreement) in one-fifth. Where people attended mediation without having commenced legal proceedings it was effective in terms of preventing defended actions.

^[20]

^[21]

The Law Society of Scotland took the position that the existing privilege in favour of negotiations for settlement of disputes was sufficient. The scope of this privilege is outlined in paragraph 2.4 above. We do not agree with this position. It is arguable that the privilege which relates to bilateral negotiations does not apply to mediation where a neutral third party is actively involved. Even if the negotiations privilege does apply, we do not consider that it offers protection to the extent required. While it is clear that the privilege for negotiations to settle a dispute covers details of the offers themselves it is not clear what else is privileged. Mediation of family disputes is different in content and style from negotiations about commercial matters in which context the privilege for negotiations was developed. The participants in family mediation are encouraged to speak freely about matters not immediately connected with the dispute and to explore their emotions and reactions to past and possible future situations. During this process facts and opinions will inevitably be stated which might not be covered by the privilege and so could be used in court. It would be difficult, if not impossible, for the participants to keep in mind the limits of the existing privilege during sessions. A cautious approach by participants inhibits mediation and tends to render it less effective.

2.12

In our discussion paper we came to the view that a privilege in favour of family mediation (assuming that such a privilege should exist) should be created by legislation rather than left to be developed by the courts.

^[22]

^[23]

In our discussion paper we mentioned as a possibility that new legislation might simply confer a discretionary power on the court to excuse a person from providing information relating to mediation sessions by way of giving oral evidence or producing documents.

We remain in favour of legislative intervention but have reconsidered the form that this should take. We now think that any new statutory provision should render information arising out of family mediation inadmissible as evidence in subsequent legal proceedings rather than conferring a privilege on those participating in mediation.

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1. Statutory provisions should be enacted rendering (subject to certain exceptions) information arising out of family mediation procedures inadmissible as evidence in subsequent legal proceedings.

Part 3 The new statutory protection in detail

In this Part we put forward specific recommendations for protecting by means of the new statutory inadmissibility rule recommended in Part 2 what occurs in mediation proceedings from being subsequently admitted as evidence in court proceedings. We first discuss what types of mediation should be protected and whether mediators whose sessions are protected should require to be selected or approved. We then consider what information should be protected by the new inadmissibility rule. Finally, the various exceptions that ought to be made to the new privilege rule are examined.

What mediation should be protected?

3.2

In Part 2 we recommended that information arising from family mediation procedures should in principle be inadmissible as evidence. We turn to consider what family mediation encompasses and the reasons for the protection being restricted to mediation relating to disputes about family matters. In our discussion paper we suggested that any new statutory provisions should contain a definition of the mediation process.

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(a) it is a procedure designed to assist people in a dispute which is or could be the subject of legal proceedings between them,

(b) it involves the active intervention of a mediator who is and remains neutral throughout the proceedings and does not attempt to impose a solution, and

(c) its aim is to help those in dispute arrive at mutually acceptable arrangements for settling their dispute or at least narrowing the areas of dispute.

All those commentators who were in favour of legislative intervention were in favour of a definition of mediation. Many saw a definition as essential in order not to spread the umbrella of protection too widely. Without a definition there is a danger of protecting proceedings carried out by a large number of counselling or advisory agencies. Nevertheless, we have come to the view that a statutory definition of mediation for the purposes of the new inadmissibility rule is unnecessary. The distinguishing features of mediation set out in the previous paragraph are all fairly obvious. We doubt whether the Lord President of the Court of Session, who we recommend should be the person charged with approving mediators,

^[33]

In our discussion paper we considered possible limitations to the kinds of disputes where mediation should be protected. In Proposition 6

We accept the need for limiting the new statutory inadmissibility rule to information from family mediation. Applying it to all matters between couples that might lead to civil proceedings would mean including, for example, claims for damages by one spouse against the other in respect of a car accident (in reality one spouse against the other's insurance company) or disputes between spouses about their business affairs. The existing privilege in favour of negotiations and offers to settle would be adequate for such disputes.

3.6

There was some division of opinion as to whether disputes concerning cohabitants should be included or whether protected mediation should be confined to married couples. Most commentators supported the inclusion of cohabitants and we agree with them. Given that a substantial proportion of households nowadays consist of unmarried couples it would be inappropriate to exclude them. As Family Conciliation Scotland pointed out many of those using the existing mediation services are cohabitants and their need for effective mediation is just as great as that of married couples.

3.7

3.8

Few commentators were in favour of extending protection to mediation other than that concerned with parental rights or disputes between couples. One group wished to include disputes that could be the subject of any civil proceedings. This would involve disputes concerning businesses, companies and local and central government. Such disputes may be resolved outwith the courts by means of various procedures (including conciliation), collectively called alternative dispute resolution.

^[38]

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We think that the new inadmissibility rule should be confined to mediation relating to family disputes, but we have found the scope of family disputes difficult to encapsulate in legislative language. Clearly the first element should be a wide range of disputes relating to children. In the discussion paper we referred to disputes about "parental rights". However, we have recently recommended that the law in future should place more emphasis on parental responsibilities rather than parental rights.

^[41]

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We have already considered that family mediation in Scotland might extend at some future time to financial and other matters and thus become a comprehensive service dealing with all the issues a couple face on the breakdown of their relationship.

^[44]

We recommend that:

2. (a) The new statutory inadmissibility rule should attach to mediation concerning:

(i) individuals in dispute about any matter relating to the residence of a child; or the regulation of personal relations and direct contact between a child and any other person; or the control, direction or guidance of a child's upbringing; or the guardianship or legal representation of a child; or any other matter relating to a child's welfare, or

(ii) spouses or cohabitants (and former spouses or cohabitants) in dispute about matters arising out of the breakdown or termination of their marriage or relationship.

(b) The Secretary of State for Scotland should have power to make regulations amending the above definition.

(Clause 1(2) and (5))

3.12

In our discussion paper we asked

^[45]

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3. The new statutory inadmissibility rule should apply to all mediations whether or not the participants were referred to mediation by a court.

(Clause 1(1))

Another issue is whether the protection should apply to successful and unsuccessful mediations or only to the former. In our discussion paper we proposed

^[47]

4. The new statutory inadmissibility rule should apply whether or not the mediation resulted in an agreement between the participants.

(Clause 1(1))

Approval of mediators

Family mediation is at present carried out by a wide variety of individuals and organisations, although formal structured mediation seems to be confined to services affiliated to Family Conciliation Scotland. Where the court makes a referral it specifies a local affiliated service. In our discussion paper we asked whether the privilege should attach to all family mediation or only to mediation provided by individuals or organisations recognised in some way.

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Another option that found little favour on consultation was restricting protection to mediation provided by services affiliated to Family Conciliation Scotland.

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The suggestion that the privilege should be conferred on mediation carried out by those who notified the appropriate court that they were available to provide mediation services

How should approval be carried out? It would be impracticable for the Lord President to consider, investigate and approve every individual mediator personally; there would have to be a considerable amount of delegation. This could be achieved by the Lord President approving an organisation, membership of which would automatically confer approved status on a mediator. Approval of the organisation would be conditional upon that organisation being suitable, conducting mediations in a responsible manner according to a proper code of practice, and membership only being conferred on individuals with suitable experience and proper training. We have considered carefully whether membership of an approved organisation should be the only way in which a mediator could be approved. We think that that approach would be too restrictive; it would prevent suitably qualified individuals who offer a specialist service and do not wish to join approved organisations from gaining approval. Specialist mediators could, for example, provide a service for particular ethnic or religious communities. In our view it should be possible for a mediator to seek individual approval from the Lord President. We do not consider further the details of procedures relating to the approval of mediators. These are matters best regulated by Act of Sederunt.

3.18

Another suggestion made on consultation was that an Advisory Council should be established to assist the Lord President in granting approval. The Council would also be a forum at which matters relating to mediation could be discussed by a wide variety of interested parties. A similar Advisory Council has been established to assist the Court of Session in making rules and discussing matters relating to messengers-at-arms and sheriff officers.

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We recommend that:

5. The new statutory inadmissibility rule should apply only to mediation carried out by an accredited member of an approved organisation or by an approved individual. Approval should be granted by the Lord President of the Court of Session.

(Clause 1(3))

What matter should be inadmissible?

3.20

A central issue is what matters connected with family mediation should be inadmissible as evidence in subsequent legal proceedings. In our opinion inadmissibility should be confined to matters which are essential to the effectiveness of mediation in order not to restrict unduly the evidence available to the courts. In Proposition 8 we asked whether privilege should attach to any information acquired in the course of, and for the purposes of, the mediation process.

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Most of those who commented preferred the simpler approach of Proposition 8. A detailed list of inadmissible information leads to complicated legislation which is difficult for mediators to explain to participants. There is also less risk with a general formula that some information which ought to be inadmissible would fall between the categories detailed. Participants should not have to keep detailed categories in mind when taking part in mediation sessions. Other formulae for defining the scope of any protection were suggested on consultation. First, that the protection should be limited to information which would be privileged as between solicitor and client. For the reasons set out in paragraph 2.14 above our recommended method of protection is to make information inadmissible as evidence rather than by allowing privilege to be claimed in respect of it. Moreover, mediators do not stand in an adviser/client relationship to the participants; they are independent impartial people who help the participants achieve a settlement. Secondly, one body favoured protecting all information acquired in the course of, and for the purposes of, mediation (the general formula in Proposition 8) but also suggested that the court should have a discretion in certain circumstances to allow evidence to be led. While there clearly have to be exceptions to the general inadmissibility rule we think any exceptions should be specified. Discretionary powers would lead to uncertainty. Participants could not be certain whether or not they would be exercised and this would have an inhibiting effect on mediation sessions. Finally, it was pointed out that in conciliating disputes relating to employment there was a simple statutory rule which appears to work well. Section 134(5) of the Employment Protection (Consolidation) Act 1978 provides in relation to conciliation of complaints of unfair dismissal that:

"Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to the officer."

The object of this provision is to preserve the confidentiality of conciliation in the hope of promoting a settlement; the same object as has led us to recommend the protection of information arising out of family mediation. We recommend the same concept of inadmissibility to protect family mediation but consider that the above provision is deceptively simple. It has been held, in construing the predecessor of section 134(5), that a party to an industrial dispute is not able to hide relevant but embarrassing material from an industrial tribunal simply by communicating it to a conciliation officer.^[61]

We prefer a general formula protecting mediation rather than a detailed list of matters which should be protected. However, we have now come to the view that to protect "information acquired in the course of, and for the purposes of," mediation is not the best formula. On the face of it such a provision would enable a participant to prevent embarrassing matter from being subsequently disclosed in court proceedings by producing it at a mediation session. It may be that the courts would hold that this was not the effect of the provision, as has been held in the employment conciliation field,

^[62]

A. A woman writes down a statement of her financial affairs in a mediation session at which she, her husband and the mediator are present. Her husband should be able to lead evidence of his wife's finances in proceedings for aliment or financial provision on divorce, but should not be entitled to give evidence as to the contents of the statement produced at the session or compel his wife or the mediator to do so.

B. A man mentions he is living with a new partner when residential access for the children is being discussed in a mediation session. His wife should be able to use this adultery as a ground for divorce, but should have to prove it otherwise than by reference to the statement at the mediation session.

Making information communicated "for the purposes of" the mediation process inadmissible would also lead to uncertainty as to whether a particular communication was protected. Participants need to talk through their problems in a general way. What they say and do during mediation sessions may be of only marginal relevance to the ostensible purposes of mediation. A court considering whether to admit evidence could find it difficult to decide what the purposes of the earlier mediation had been, especially if the parties had gone voluntarily before commencing legal proceedings. Uncertainty as to whether matters would be admissible later would have an inhibiting effect. Finally, if information includes physical reactions to what was said and a person's demeanour and appearance during mediation, as we think it should, it is hard to see how that these items can be "for the purposes of" mediation.

On reflection we now think that what ought to be protected from disclosure in court proceedings subsequently is not so much information connected with mediation but anything which occurs during the mediation sessions themselves. Subject to various exceptions which we discuss later in this Part, no evidence should be admitted subsequently as to what occurred in a mediation session unless at least the participants agree that it should.

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As we pointed out in our discussion paper

Nearly all of those who commented on these propositions agreed with them. One body suggested that the rule in criminal proceedings should apply whereby the court may excuse an irregularity and allow illegally or improperly obtained evidence to be admitted.

In disputes concerning a child some mediators find it appropriate to involve the child in the making of certain decisions. A recent survey of family conciliation in Scotland found that children attended at least one session in 15 per cent of the cases.

^[75]

Mediators sometimes refer the participants to another person such as a doctor for consultations. In our discussion paper we asked whether the privilege should attach to information acquired by this other person.

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Summing up the discussion in the previous paragraphs, we recommend that:

6. (a) The new statutory inadmissibility rule should apply to any information as to what occurred at a mediation session, and accordingly no evidence (direct or indirect) of such matters should subsequently be admissible in court proceedings.

(b) The above inadmissibility rule should be subject to the exceptions set out in Recommendations 10, 12, 13, 14 and 15 and should be in addition to any rule of privilege.

(c) A mediation sessions should be defined as a session conducted by an approved mediator at which at least one of the participants, a child of a participant, or a child about whom there is a dispute which is the subject of the mediation, is present.

(Clause 1(1), (3), (6))

3.30

In order to protect mediation sessions properly the new inadmissibility rule would have to apply whether or not the parties to any court proceedings were the same as the parties to the mediation and whether or not the subject matter of the proceedings was the same as that of the mediation. For example, a grandfather should not be entitled in an application for contact with his grandchild to obtain evidence as to what occurred in a mediation between the child's parents over a dispute about which parent the child should live with. We recommend that:

7. The new statutory inadmissibility rule set out in Recommendation 6 should apply (subject to the exceptions stated there) whether or not the parties to the court proceedings are the same as the parties to the mediation or the subject matter of the proceedings is the same as that mediated.

(Clause 1(1))

Factual information about sessions inadmissible?

3.31

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8. The new statutory inadmissibility rule should not apply to the fact that a mediation session has taken place, the time and place of the session or the identities of the participants.

(Clause 1(1))

Results of mediation inadmissible?

Mediation may result in an agreement between the parties as to some or all of the matters in dispute or it may fail to resolve matters. We understand that the terms of any agreement are normally set out in writing and the document is then signed by the parties, but oral agreements are also possible. Should the existence of an agreement, the terms of an agreement or the failure to reach agreement be facts that could be mentioned in court or should these matters be inadmissible?

3.33

In our discussion paper we proposed that no privilege should attach to the fact that an agreement was reached, the terms of any written agreement

9. The new statutory inadmissibility rule should not apply to the fact that an agreement (written or oral) was reached or was not reached as a result of mediation, or to the terms of any agreement.

(Clauses 1(1) and 2(1)(a))

3.36

We have just recommended that the fact that mediation resulted in failure to reach agreement should be capable of being disclosed in court. We now deal with the related question whether in such a case evidence should be admitted as to why the mediation failed. Proposition 19 in our discussion paper

Exceptions to inadmissibility

We turn now to discuss what exceptions should be made to the recommended new statutory inadmissibility rule. Although making information arising from mediation sessions absolutely inadmissible would be a simple and readily understandable rule, we think that, for reasons explained subsequently, limited exceptions have to be made. In brief the inadmissibility rule should not apply:

(a) in criminal proceedings,

(b) in children's hearings, adoption proceedings and certain other proceedings involving children and local authorities,

(c) where the parties agree,

(d) where the mediator is the pursuer or defender in civil proceedings arising out of the mediation,

(e) where a written agreement resulting from the mediation is challenged, and

(f) in civil proceedings relating to personal injury or damage to property which occurred during mediation.

3.38

Proceedings in which information should be inadmissible. In our discussion paper we consider the types of proceedings in which the proposed new statutory privilege should be applicable.

We are now firmly of the opinion that the new rule making family mediation information inadmissible should be restricted to civil proceedings and accordingly should not apply in criminal proceedings. The balance to be struck between the competing public interests is different in the two kinds of proceedings. In practice we doubt whether allowing information from family mediation sessions to be admitted as evidence in criminal proceedings would have a deleterious effect on family mediation. The authorities would only be alerted as to what occurred in a mediation session if a serious crime was concerned since the mediator and the other parties would not lightly disclose information. Furthermore, we believe that it would only be in the last resort that the Crown or a reporter to a children's panel would call the mediator or other participants to give evidence as to what occurred during mediation sessions. We therefore recommend that:

10. The new statutory inadmissibility rule should not apply in any criminal proceedings.

(Clause 1(1))

A person may give evidence in subsequent court proceedings which is at variance with what he or she said previously during mediation sessions. Proposition 29(b) and (c)

^[100]

Inadmissibile in all civil proceedings? If the new statutory inadmissibility rule is to be confined to civil proceedings, should it apply to such proceedings generally or only to certain categories of proceedings? In our discussion paper we were inclined to favour the latter approach and suggest that privilege should be limited to proceedings whose subject matter included any of the issues with which the mediation process was concerned.

^[101]

Some commentators agreed with our suggestion for restricting the privilege, but others favoured allowing the privilege to apply to all civil proceedings. In view of the division of opinion we have reconsidered the matter. We now think it would be legislatively simpler and cause less potential difficulties if information arising from mediation was inadmissible in all civil proceedings. Otherwise the court would have to decide whether or not the mediation had been concerned with an issue which included any of the issues presently before the court. It might be possible to do this where the parties had been referred to mediation by a court since the pleadings in the proceedings in which mediation had occurred and the pleadings in the present court proceedings could be compared. Even this ignores the fact that people in mediation sessions do not always confine themselves to the issues in dispute. Indeed they may be encouraged by the mediator to discuss matters in a more general fashion. The court's task would be much harder where the parties had gone to mediation in order to avoid litigation, since then there might be nothing apart from the contents of the mediation sessions themselves to indicate what issues were discussed. In these cases the admissibility or otherwise of information could be determined by the court only after it had been told what had been said during mediation, so depriving the new rule of much of its protective value.

3.45

Another argument against confining the inadmissibility rule to specified civil proceedings is that restrictions could give rise to uncertainty in the minds of the participants and hence tend to inhibit free discussion. Although the rule would apply to civil proceedings generally it would normally apply only in proceedings concerned with issues similar to those explored in the previous mediation sessions. This is because evidence of what occurred in mediation would have to be relevant to an issue before the court.

3.46

Some commentators suggested that if the privilege were to apply to civil proceedings generally then an exemption should be made for proceedings before the sheriff to establish the grounds of referral to a children's hearing. Such proceedings are regarded as civil proceedings,

^[102]

^[103]

11. The new statutory inadmissibility rule should apply in civil proceedings generally, subject to the various exceptions contained in Recommendations 12 to 15.

(Clause 1(1))

Proceedings relating to children. We have already expressed the opinion that there should be exceptions to the inadmissibility rule in order to protect the interests of children. There is considerable support for the view that the interests of children must be taken into account in some way, and the services operating in Scotland regard their obligations of confidentiality as qualified to this extent. Thus, for example, the conciliation services affiliated to Family Conciliation Scotland regard sessions and associated records and correspondence as strictly confidential "except in the case of a criminal offence against a child being firmly alleged".

^[104]

^[105]

(a) whether any person is of such habits or mode of life as to be unfit to have the care of a child;

(b) whether any person has neglected a child;

(c) whether any person has persistently or seriously ill-treated a child;

(d) whether any person has committed a sexual offence against a child, and

(e) whether any person has committed an offence involving bodily injury to a child.

All those who commented were agreed that some exceptions should be made to the rule of privilege where children's interests were concerned and many approved of our suggested list of issues, especially those involving crimes against children. Others voiced concern at the width of some of the categories. The Court of Session Judges pointed out that allegations of neglect, bad habits and inappropriate mode of life are often flung at each other by parties to a custody or similar dispute about family matters. If evidence of information from mediation was to be admissible for these issues (items (a) and (b) on our suggested list) this would render an inadmissibility rule practically worthless. Yet other commentators with experience in the field of children's hearings pointed out that because the list did not contain all the grounds of referral to a children's hearing

^[106]

In our discussion paper we also asked whether there were any other circumstances relevant to the interests of children where privilege should not apply.

^[107]

We have already recommended that the inadmissibility rule should not apply in any criminal proceedings. Information would therefore not be withheld from a criminal court dealing with alleged neglect or persistent or serious ill-treatment of a child, or a sexual offence against or causing bodily injury to a child. This by itself would not afford sufficient protection to children. The rule should also not apply in proceedings to establish the grounds of referral to a children's hearing and in the hearing itself. The grounds for referring a child to a children's hearing are that:

^[108]

(a) he is beyond the control of his parent; or

(b) he is falling into bad associations or is exposed to moral danger; or

(c) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development;

(d) any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975 has been committed in respect of him or in respect of a child who is a member of the same household; or

(dd) the child is, or is likely to become, a member of the same household as a person who has committed any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975; or

(e) the child, being a female, is a member of the same household as a female in respect of whom an offence which constitutes a crime of incest has been committed by a member of that household; or

(f) he has failed to attend school regularly without reasonable excuse; or

(g) he has committed an offence; or

(gg) he has misused a volatile substance by deliberately inhaling, other than for medicinal purposes, that substance's vapour; or

(h) he is a child whose case has been referred to a children's hearing in pursuance of Part V of the Social Work (Scotland) Act 1968; or

(i) he is in the care of a local authority and his behaviour is such that special measures are needed for his adequate care and control.

Information from mediation sessions should also be admitted in other proceedings relating to the question of future care of children. For example, in adoption proceedings, a court may dispense with a parent's or guardian's refusal to consent to adoption on the basis that he or she has persistently failed without reasonable cause to discharge the parental duties in relation to the child, has abandoned or neglected the child, or has persistently or seriously ill-treated the child.^[109] In all these proceedings the public interest in the protection and future well-being of children should rank above the public interest in the promotion of family mediation. Appeals relating to children's hearings,^[110] and proceedings for rescission of a local authority parental rights resolution, involve similar issues.^[111]

We have not found it easy to arrive at a formula for encompassing all the civil proceedings involving children where mediation information should be admissible. We reject simply listing excluded proceedings by reference to the statutory provisions governing them. This is partly because parental conduct or suitability could also be raised in common law proceedings such as M and Another v Dumfries and Galloway Regional Council,

12. The new statutory inadmissibility rule should not apply in children's hearings, proceedings relating to children's hearings, adoption of children, or proceedings relating to the care and protection of children in which a local authority or voluntary organisation is a party.

(Clause 2(3)(a) and Schedule, paragraphs 1 to 4)

3.53

Agreement to admit otherwise inadmissible information. In our discussion paper we consider whether a privilege should be conferred only on the parties to the dispute or whether the mediator should have a separate and independent privilege as well.

^[116]

The responses on consultation showed this to be a controversial issue. Most of the legal commentators favoured limiting the privilege to the parties. The arguments put forward in favour of limitation are:

(a) If the mediator declines to give evidence the court may be unable to decide between different versions of what happened during mediation if the parties waive their privilege and wish to put the matter before the court.

(b) A solicitor is compelled to give evidence about matters covered by the solicitor/client privilege if the client waives the privilege; giving mediators a greater privilege would place them in a unique position.

(c) A mediator by refusing to waive privilege could prevent the parties from giving evidence as to what occurred during mediation, even though the parties wished to present such evidence.

(d) It is unnecessary to give mediators an independent privilege in order to achieve an efficient mediation service.

On the other hand, Family Conciliation Scotland, the Tayside Family Conciliation Service and Tayside Social Work Department supported mediators having a separate and independent privilege. The following reasons have been adduced in support of an independent privilege:

(a) If mediators could be called to give evidence as to what took place in mediation sessions it would jeopardise their independence and neutrality.

(b) People might become reluctant to become mediators if there was a possibility that they would be called to give evidence in court.

(c) Successful mediators take an active part in the session and probe for underlying causes of the dispute. The possibility of having to give evidence might inhibit mediators who might simply adopt a low profile, noting the parties' positions and statements for example.

(d) Mediation is not the same as negotiation. One should not simply adopt the "without prejudice" rules applicable to the latter.

(e) Mediators are not professional advisers, they have an independent role. The solicitor/client analogy is false.

The Sheriffs' Association were undecided and the remaining individuals and organisations were fairly evenly divided.

3.55

In our view protection of mediation information should be restricted to the minimum necessary to promote an efficient family mediation service. On this ground we do not think conferring a separate and independent power on mediators to withhold evidence can be justified. We appreciate the concern felt by mediators about having to give evidence in court, but it is a duty which many other professionals have to carry out when called to do so. Furthermore, we imagine that mediators would only rarely be called to give evidence. At present the courts seek to deter the questioning of priests whom parishioners have consulted, although no legal privilege exists. This practice might well be extended to mediators.

3.56

In the course of mediation the mediator may have had sessions with both parties to the dispute present together, with each separately, or with the children. As far as the admissibility of information is concerned we think each session should be treated separately. All the participants, but not the mediator, in a particular session should have to agree before evidence of any of the contents of that session would be admissible. Children aged 16 and above have the capacity to agree.

^[117]

^[118]

ad litem

We recommend that:

13. (a) Information as to what occurred in a mediation session should be admissible as evidence if each and every participant (other than the mediator and any child too young to understand the significance of what occurred) in that session agrees that such evidence should be admitted.

(b) A participant below the age of 16 who understands the significance of what occurred in a mediation session should have the legal capacity to agree.

(Clause 2(1)(c), (2))

3.58

Mediator personally involved in proceedings. We pointed out in our discussion paper that it might be desirable to protect the interests of the mediator by disapplying the privilege where the mediator is charged with a criminal offence or is a party to civil or disciplinary proceedings in respect of matters arising out of mediation. The parties should not be entitled to obstruct the court and prejudice the position of the mediator by claiming privilege. We invited views on whether a provision was necessary.

^[119]

^[120]

14. The new statutory inadmissibility rule should not apply where the mediator is a party to civil or disciplinary proceedings arising from the mediation process.

(Clauses 1(7) and 2(3)(b))

Disputes about mediation agreements. At the conclusion of a successful mediation a written agreement signed by the parties is generally prepared. Less commonly there is simply an oral agreement. We have previously recommended that the existence or terms of agreement (whether written or oral) should be admissible information.

^[121]

Proposition 17 in our discussion paper

^[122]

^[123]

We agree with the point made by the Faculty of Advocates. The terms of an agreement on financial provision on divorce, for example, are binding unless it can be shown that they were not fair and reasonable at the time they were entered into

^[124]

^[125]

We consider that oral and written agreements should be treated differently in relation to the admissibility of mediation information in proceedings where the agreement is disputed. In the case of an agreement which had not been set down in writing information from the mediation sessions should not be admissible. Otherwise it would be all too easy for one participant who wished to lead evidence as to what occurred during mediation to aver an oral agreement, the existence of which would be challenged by the other participant. Evidence from the mediation sessions in support or rebuttal of the terms or existence of an oral agreement could therefore be admitted only if all participants (other than the mediator) agreed. If all participants did not so agree the court would very probably have to ignore the agreement or any disputed terms because evidence to resolve the dispute, apart from what occurred during mediation, would be unlikely to be available. Written agreements on the other hand are likely to have been carefully prepared and thus may be expected to reflect accurately the intentions of the participants. We therefore consider that the validity or terms of written agreements are seldom likely to be challenged and that the prospect that evidence of what occurred during mediation would be admissible in the event of a challenge would not be detrimental to the confidentiality and hence the effectiveness of the mediation process. We would stress that mediation information would be admissible only if a party in his or her pleadings challenged the validity or the terms of a written agreement and claimed that the agreement should be set aside or varied, and only to the extent necessary to enable such a challenge to be made.

3.63

We recommend that:

15. (a) Where the validity or terms of an oral agreement arising out of mediation are challenged in civil proceedings, information from the mediation sessions should not be admissible as evidence unless all participants agree.

(b) Where the validity or terms of a written agreement arising out of mediation are challenged in civil proceedings, information from the mediation sessions should be admissible but only to the extent necessary for such a challenge.

(Clause 2(1)(b))

3.64

Other exemptions. In our discussion paper we asked whether one party who had suffered unnecessary delay and expense due to the other's uncooperative conduct during mediation should be entitled to put this before the court so that it could be reflected in the expenses of the proceedings.

^[126]

^[127]

We also asked in our discussion paper

^[128]

^[129]

Where a participant in a mediation session assaults another or damages property he or she could be charged. In the subsequent criminal proceedings information as to what occurred would be admissible.

^[130]

We recommend that:

16. (a) Information arising from mediation sessions should be inadmissible as evidence even where:

(i) an award of expenses in view of a party's alleged misconduct during the mediation is being considered, or

(ii) it is alleged that the evidence being given in proceedings is inconsistent with what the witness said during mediation.

(b) Information from mediation sessions should be admissible as evidence in proceedings claiming damages for personal injury or damage to property resulting from a participant's conduct during mediation.

(Clause 2(3)(a) and Schedule, paragraph 5)

Procedural matters

3.68

In court a privilege usually cannot receive effect unless it is claimed by the person entitled to it, whether that person is a witness or a party. If called as a witness, he or she cannot refuse to give evidence at all because of the possibility that he or she may be asked questions about matters to which the privilege may apply. He or she must enter the witness box and claim the privilege if such a question is asked. In the absence of a claim the evidence is admissible. In our discussion paper we set out a number of practical issues where the existing law of privilege seemed unclear or in need of amendment. Should the judge tell the witness that he or she need not answer a question, the answer to which might contain privileged information? Should the asking of such a question be forbidden? If a witness who is not a party states a claim to the privilege which is wrongly rejected, or states an invalid claim which is wrongly upheld, should a party be entitled to appeal? Should there be a rule that no adverse inference may be drawn if the privilege is claimed? What if the witness divulges such privileged information where no claim to privilege has been made through ignorance? We asked for views as to whether it was necessary for special provisions to be made for these matters in connection with the proposed new privilege.

^[131]

Confidentiality and inadmissibility

So far this report has been concerned with the admissibility of information relating to family mediation as evidence in court proceedings. In this final section we look at confidentiality - whether and to what extent the possessor of information about matters relating to family mediation is entitled to use and disclose it otherwise than in court proceedings. We understand that the question whether to breach confidentiality and disclose any matter to the appropriate authorities seldom arises in practice but may cause serious difficulties for mediators when it does. Mediators are reluctant to disclose information arising out of mediation because it prejudices the credibility of mediation and compromises their impartiality. The Statement of Principles of Conciliation issued by Family Conciliation Scotland makes it clear that conciliation services regard mediation sessions and associated records as strictly confidential "except in the case of a criminal offence against children being firmly alleged".

^[132]

^[133]

In our discussion paper we suggested that the problems faced by mediators might be alleviated by providing an additional defence of disclosure in the public interest

^[134]

^[135]

We have come to the view that there should be no new legislative provisions about confidentiality in this area. The existing law, such as it is, should continue to apply. The mediation services could protect mediators without legislation by amending their statements about confidentiality provided to prospective participants and making the limits clear. The Lord President in dealing with an application for approval by a mediation service or an individual mediator could require the terms of any confidentiality statement to be submitted to him for consideration and approval. We therefore recommend that:

17. There should be no new statutory provisions dealing with confidentiality in family mediation proceedings.

Part 4 List of Recommendations

1.

Statutory provisions should be enacted rendering (subject to certain exceptions) information arising out of family mediation procedures inadmissible as evidence in subsequent legal proceedings.

(Paragraph 2.14)

2.

(a) The new statutory inadmissibility rule should attach to mediation concerning:

(i) individuals in disputes about any matter relating to the residence of a child; or the regulation of personal relations and direct contact between a child and any other person; or the control, direction or guidance of a child's upbringing; or the guardianship or legal representation of a child; or any other matter relating to a child's welfare, or

(ii) spouses or cohabitants (and former spouses or cohabitants) in dispute about matters arising out of the breakdown or termination of their marriage or relationship.

(b) The Secretary of State for Scotland should have power to make regulations amending the above definition.

(Paragraph 3.11; Clause 1(2) and (5))

3.

The new statutory inadmissibility rule should apply to all mediations whether or not the participants were referred to mediation by a court.

(Paragraph 3.12; Clause 1(1))

4.

The new statutory inadmissibility rule should apply whether or not the mediation resulted in an agreement between the participants.

(Paragraph 3.13; Clause 1(1))

5.

The new statutory inadmissibility rule should apply only to mediation carried out by an accredited member of an approved organisation or by an approved individual. Approval should be granted by the Lord President of the Court of Session.

(Paragraph 3.19; Clause 1(3))

6.

(a) The new statutory inadmissibility rule should apply to any information as to what occurred at a mediation session, and accordingly no evidence (direct or indirect) of such matters should subsequently be admissible in court proceedings.

(b) The above inadmissibility rule should be subject to the exceptions set out in Recommendations 10, 12, 13, 14 and 15 and should be in addition to any rule of privilege.

(c) A mediation session should be defined as a session conducted by an approved mediator at which at least one of the participants, a child of a participant, or a child about whom there is a dispute which is the subject of the mediation, is present.

(Paragraph 3.29; Clause 1(1), (3), (6))

7.

The new statutory inadmissibility rule set out in Recommendation 6 should apply (subject to the exceptions stated there) whether or not the parties to the court proceedings are the same as the parties to the mediation or the subject matter of the proceedings is the same as that mediated.

(Paragraph 3.30; Clause 1(1))

8.

The new statutory inadmissibility rule should not apply to the fact that a mediation session has taken place, the time and the place of the session or the identities of the participants.

(Paragraph 3.31; Clause 1(1))

9.

The new statutory inadmissibility rule should not apply to the fact that an agreement (written or oral) was reached or was not reached as a result of mediation, or to the terms of any agreement.

(Paragraph 3.35; Clauses 1(1) and 2(1)(a))

10.

The new statutory inadmissibility rule should not apply in any criminal proceedings.

(Paragraph 3.40; Clause 1(1))

11.

The new statutory inadmissibility rule should apply in civil proceedings generally, subject to the various exceptions contained in Recommendations 12 to 15.

(Paragraph 3.46; Clause 1(1))

12.

The new statutory inadmissibility rule should not apply in children's hearings, proceedings relating to children's hearings, adoption of children, or proceedings relating to the care and protection of children in which a local authority or a voluntary organisation is a party.

(Paragraph 3.52; Clause 2(3)(a) and Schedule, paragraphs 1 to 4)

13.

(a) Information as to what occurred in a mediation session should be admissible as evidence if each and every participant (other than the mediator and any child too young to understand the significance of what occurred) in that session agrees that such evidence should be admitted.

(b) A participant below the age of 16 who understands the significance of what occurred in a mediation session should have the legal capacity to agree.

(Paragraph 3.57; Clause 2(1)(c), (2))

14.

The new statutory inadmissibility rule should not apply where the mediator is a party to civil or disciplinary proceedings arising from the mediation process.

(Paragraph 3.58; Clauses 1(7) and 2(3)(b))

15.

(a) Where the validity or terms of an oral agreement arising out of mediation are challenged in civil proceedings, information from the mediation sessions should not be admissible as evidence unless all participants agree.

(b) Where the validity or terms of a written agreement arising out of mediation are challenged in civil proceedings, information from the mediation sessions should be admissible but only to the extent necessary for such a challenge.

(Paragraph 3.63; Clause 2(1)(b))

16.

(a) Information arising from mediation sessions should be inadmissible as evidence even where:

(i) an award of expenses in view of a party's alleged misconduct during the mediation is being considered, or

(ii) it is alleged that the evidence being given in proceedings is inconsistent with what the witness said during mediation.

(b) Information from mediation sessions should be admissible as evidence in proceedings claiming damages for personal injury or damage to property resulting from a participant's conduct during mediation.

(Paragraph 3.67; Clause 2(3)(a) and Schedule, paragraph 5)

17.

There should be no new statutory provisions dealing with confidentiality in family mediation proceedings.

(Paragraph 3.71)

Appendix A

Civil Evidence (Family Mediation)

(Scotland) Bill

ARRANGEMENT OF CLAUSES

Clause

Inadmissibility in civil proceedings of information obtained at mediation session.

Exceptions from ambit of s 1.

Short title, commencement and extent.

Schedule.

Civil Evidence (Family Mediation) (Scotland) Bill

	DRAFT OF A BILL TO
A.D. 1992	Make provision for the inadmissibility as evidence in civil proceedings in Scotland of things which have occurred or been said, written or observed during a session of mediation relating to a family dispute. BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Inadmissibility in civil proceedings of information obtained at mediation session	1.- (1) Subject to section 2 of this Act, no information as to what has occurred or been said, written or observed during a session of mediation to which this Act applies relating to a family dispute shall be admissible as evidence in any civil proceedings, whether or not the parties to the proceedings are the same as the persons who were present at the mediation session. (2) In this Act a "family dispute" means - (a) dispute between two or more individuals relating to - (i) the residence of a child; (ii) the regulation of personal relations and direct contact between a child and any other person; (iii) the control, direction or guidance of a child's upbringing; (iv) the guardianship or legal representation of a child; or (v) any other matter relating to a child's welfare; (b) A dispute between spouses or former spouses concerning matters arising out of the breakdown or termination of their marriage; (c) a dispute between parties to a purported marriage concerning matters arising out of the breakdown or annulment of the purported marriage; (d) a dispute between cohabitants or former cohabitants concerning matters arising out of the breakdown or termination of their relationship; (e) such other type of dispute as the Secretary of State may prescribe in regulations as being a family dispute for the purposes of this Act. (3) This Act applies to a session of mediation which is conducted by a person - (a) approved as a mediator in family disputes by the Lord President of the Court of Session; or (b) accredited as a mediator in family disputes to an organisation concerned with mediation in such disputes and approved as aforesaid; and at which any of the parties to the dispute or a relevant child are present. (4) For the purposes of subsection (2)(d) above "cohabitants" means a man and a woman who are not married to each other but who are living with each other as if they were husband and wife. (5) The power to make regulations under subsection (2)(e) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (6) In subsection (3) above "a relevant child" means a child of any of the parties to the dispute concerned or in relation to whom there is such a dispute as is mentioned in subsection (2)(a) above. (7) In this Act "civil proceedings" does not include an arbitration or proceedings before a tribunal or inquiry.

EXPLANATORY NOTES

Clause 1

Subsection (1)

This subsection sets out the general rule that information from sessions at which family disputes are mediated is inadmissible in civil proceedings. It implements Recommendations 1, 3, 4, 6(a), 7, 10 and 11. The various exceptions to the rule are contained in Clause 2. The protected information is so described as to exclude from the scope of the protection information about when and where the sessions took place, who was present at them and any agreements reached as a result of them, so implementing Recommendations 8 and 9 (in part).

Subsection (2)

This subsection defines a family dispute.

Paragraph (a) implements Recommendation 2(a)(i). Confining this paragraph to disputes between two or more individuals eliminates disputes where a local authority or some other organisation having statutory duties in the child care field is involved.

Paragraphs (b) and (d) implement Recommendation 2(a)(ii). Cohabitants are defined in subsection (4).

Paragraph (c) extends the definition in paragraph (b) to parties to a void or voidable marriage.

Paragraph (e), taken with subsection (5), implements Recommendation 2(b).

Subsection (3)

The provisions of this subsection dealing with approval of mediators implements Recommendation 5. The approval procedures will require to be further regulated by Act of Sederunt. The remainder of this subsection, together with subsection (6), implements Recommendation 6(c).

Subsection (4)

This subsection contains the normal definition of cohabitants. "Former cohabitants" in subsection 2(d) would be construed accordingly.

Subsection (6)

This subsection, together with subsection (3), implements Recommendation 6(c).

Subsection (7)

This subsection makes it clear that civil proceedings do not include proceedings before a tribunal or inquiry or an arbitration. It implements Recommendation 14.

Exemptions from
Ambit of s.1.

2.-

(1) Nothing in section 1 of this Act shall prevent the admissibility as evidence in civil proceedings -

(a) of the content of any agreement (whether written or oral) entered into during a mediation session or of the fact that no such agreement was entered into during such a session;

(b) if any written agreement entered into as a result of a mediation session is challenged in civil proceedings, of information as to anything which occurred during a mediation session in relation to that challenge; or

(c) of information as to anything which occurred during a mediation session, if every participant (other than the mediator) at that session agrees that the information should be admitted as evidence.

(2) For the purposes of subsection (1)(c) above, a child under the age of 16 years who was present at the mediation session -

(a) shall be regarded as a participant; and

(b) notwithstanding anything in the Age of Legal Capacity (Scotland) Act 1991, shall have legal capacity to agree that the information should be admitted as evidence,

but only if at the time when the mediation session took place he was capable of understanding the nature and significance of the matters to which the information relates.

(3) Nothing in section 1 of this Act shall prevent the admissibility as evidence of information as to anything which occurred during a mediation session at any civil proceedings -

(a) specified in the Schedule to this Act; or

(b) arising from the mediation process in which the mediator is a party.

(4) Any reference in this section to anything which occurred during a mediation session shall include a reference to anything which was said, written or observed during such a session.

EXPLANATORY NOTES

Clause 2

This clause sets out the exceptions to the general rule of inadmissibility contained in Clause 1.

Subsection (1)

Paragraph (a) implements Recommendation 9. Only agreements entered into during a session are mentioned because information about agreements entered into afterwards is not made inadmissible evidence by Clause 1(1).

Paragraph (b) implements Recommendation 15(b). Confining the paragraph to written agreements, so excluding oral agreements, implements Recommendation 15(a).

Paragraph (c) implements Recommendation 13 in part. Subsection (2) deals with children under 16 who are present at mediation sessions.

Subsection (2)

This subsection implements Recommendation 13 in part. Persons aged 16 or over are automatically treated as participants and have the capacity to agree to the admission of information under the Age of Legal Capacity (Scotland) Act 1991, s 1(1)(b).

Subsection (3)

This subsection, taken with the Schedule, sets out the civil proceedings in which the inadmissibility rule in Clause 1(1) does not apply. Paragraph (a) and paragraphs 1 to 4 of the Schedule deal with proceedings involving the care and protection of children so implementing Recommendation 12. Paragraph 5 of the Schedule relates to damages claims arising out of the conduct of a party during mediation. Paragraph (b) implements Recommendation 14.

Short title,
commencement and extent

3.-(1) This Act may be cited as the Civil Evidence (Family Mediation) (Scotland) Act 1992.

(2) This Act shall come into force at the end of the period of 2 months beginning with the day on which it is passed.

(3) This Act extends to Scotland only.

SCHEDULE

Proceedings referred to in section 2(3)(a) of this Act

1. Proceedings (whether under an enactment or otherwise) relating to a child's care or protection in which a local authority or a voluntary organisation is a party.

2. Proceedings under Part III of the Social Work (Scotland) Act 1968 before, or relating to, a children's hearing.

3. Proceedings for an adoption order under section 12 of the Adoption (Scotland) Act 1978.

4. Proceedings for an order under section 18 of that Act declaring a child free for adoption.

5. Proceedings against one of the parties to a mediation referred to in this Act in respect of damage to property, or personal injury, alleged to have been caused by that party during a mediation session.

EXPLANATORY NOTES

Schedule

Paragraphs 1 to 4 implement Recommendation 12.

Paragraph 5 implements Recommendation 16(b). "Party" rather than "participant" is used to make it clear that the mediator is not included. Civil proceedings in which the mediator is involved are dealt with in Clause 2(3)(b).

Appendix B

List of those who submitted comments on the Discussion Paper

Aberdeen University, Faculty of Law Working Party

Association of Chief Police Officers in Scotland

Association of Reporters to Children's Panels

Association of Scottish Police Superintendents

Association of University Women, Dundee and St Andrews

Association of University Women, Glasgow

Association of University Women, Perth

Mr Ronald Beasley, Student Counsellor, Queen Margaret College, Edinburgh

The Catholic Marriage Advisory Council

Convention of Scottish Local Authorities

The Court of Session Judges

The Faculty of Advocates

Family Charter Campaign

Family Conciliation Scotland

The Humanist Society of Scotland

The Law Society of Scotland

Ms Macnab and Others

The Mothers' Union, Scotland

Scottish Child and Family Alliance

The Sheriffs' Association

The Sheriffs Principal

Sheriff A L Stewart, Dundee

Society of Writers to HM Signet (a member)

Ms Elaine Sutherland, Lecturer, University of Glasgow

Tayside Family Conciliation Service

Tayside Regional Council, Reporter to Children's Panel

Tayside Regional Council, Social Work Department

Note 1   Evidence is included (Item 1) in our First Programme of Law Reform Scot Law Com No 1 (1965).    [Back]

Note 2   Conciliation has been used in the employment law field for many years. See for example the Conciliation Act 1896 and the Industrial Relations Act 1971, s 146 which introduced permanent conciliation officers.    [Back]

Note 3   Court of Session Rules, rule 170B(15); Sheriff Court Ordinary Cause Rules, rule 132F. These rules came into force on 9 April 1990.    [Back]

Note 4   Family Conciliation Scotland, Fourth Annual Report (1990-1991), p 7.    [Back]

Note 5   HM Advocate v Airs 1975 JC 64, 70.    [Back]

Note 6   Fyfe v Miller (1835) 13S 809.    [Back]

Note 7   Bell v Lothiansure Ltd 1990 SLT 58.    [Back]

Note 8   Wilkinson, Scottish Law of Evidence,p 100; Rush and Tompkins Ltd v Greater London Council [1989] AC 1280, 1299-1300 (an English case likely to be followed in Scotland).    [Back]

Note 9   Burns v Burns 1964 SLT (Sh Ct) 21; Ware v Edinburgh District Council 1976 SLT (Lands Tribunal) 21.    [Back]

Note 10   Wilkinson, Scottish Law of Evidence, p 102.    [Back]

Note 11   Law Reform (Parent and Child) (Scotland) Act 1986, s 3(2).    [Back]

Note 12   Wilkinson, Scottish Law of Evidence, p 103.    [Back]

Note 13   MacKay v MacKay 1946 SC 78; Gallacher v Gallacher 1934 SC 339; Wilkinson, p 103.    [Back]

Note 14   See for example, McTaggart v McTaggart [1949] P 94, Henley v Henley [1955] P 202, Slade-Powell v Slade-Powell (1964) 108 Solicitors Journal 1033.    [Back]

Note 15   Pais v Pais [1971] P 119.    [Back]

Note 16   Theodoropoulas v Theodoropoulas [1964] P 311.    [Back]

Note 17   "Family Conciliation," (1991) 36 Journal of the Law Society of Scotland 20, 21.    [Back]

Note 18   Para 4(iv)(d).    [Back]

Note 19   Para 5.13.    [Back]

Note 20   Family Conciliation in Scotland, Scottish Office Central Research Unit Papers (1990), p 7.    [Back]

Note 21   Proposition 1, para 5.11.    [Back]

Note 22   Proposition 2, para 5.16.    [Back]

Note 23   See para 2.6 above.    [Back]

Note 24   Paras 5.14-5.16.    [Back]

Note 25   Evidence (Amendment) Act (No 2) 1980, s 35.    [Back]

Note 26   R v Howse [1983] NZLR 246, 251.    [Back]

Note 27   Proposition 2, para 5.16.    [Back]

Note 28   Matters communicated by a party to an industrial dispute to a conciliation officer are inadmissible in tribunal proceedings except with the consent of the party, Employment Protection (Consolidation )Act 1978, s 134(5). The Australian Family Law Act 1975 also uses an inadmissibility rule for family conciliation.    [Back]

Note 29   Information inadmissible by virtue of the rule could be admitted if all parties agreed; see paras 3.53 to 3.57 below.    [Back]

Note 30   See para 3.23 below.    [Back]

Note 31   Proposition 5, para 5.25.    [Back]

Note 32   See Recommendation 5 at para 3.19 below.    [Back]

Note 33   See Recommendation 5.    [Back]

Note 34   Para 5.31.    [Back]

Note 35   In our recent Report on Family Law (Scot Law Com No 135, May 1992) we have recommended that the statute law should place a greater emphasis on parental responsibilities. The draft Bill appended to that report therefore refers to parental responsibilities and parental rights.    [Back]

Note 36   Para 5.31.    [Back]

Note 37   Para 5.31.    [Back]

Note 38   Alternative Dispute Resolution, ed. Sidney Prevezer, 1991, Euro Conferences Ltd.    [Back]

Note 39   Ibid, p 51.    [Back]

Note 40   Clause 1(2)(a).    [Back]

Note 41   Report on Family Law (Scot Law Com No 135, May 1992), paras 2.1 to 2.58.    [Back]

Note 42   Social Work (Scotland) Act 1968, s 18(3).    [Back]

Note 43   1968 Act, s 17B.    [Back]

Note 44   A comprehensive service is provided in England and Wales by the Family Mediators Association, established in 1988.    [Back]

Note 45   Proposition 3(a), para 5.24.    [Back]

Note 46   Family Conciliation in Scotland, Scottish Office Central Research Unit Papers (1990), paras 5.9 to 5.12.    [Back]

Note 47   Proposition 16, para 5.41.    [Back]

Note 48   Propositions 3 and 4, para 5.24.    [Back]

Note 49   Proposition 4, para 5.24.    [Back]

Note 50   Proposition 3(b), para 5.24    [Back]

Note 51   Council Report, Law Society of Scotland, May 1992.    [Back]

Note 52   Proposition 3(c)(ii), para 5.24.    [Back]

Note 53   Proposition 3(c)(i), para 5.24.    [Back]

Note 54   Para 5.20.    [Back]

Note 55   Prime Minister's statement on Scots Law (Ministerial Functions), 21 December 1972; HC Deb, Col 848, col 456 (Written Answers).    [Back]

Note 56   Court of Session Rules, rul 46(a).    [Back]

Note 57   Debtors (Scotland) Act 1987, s 76(2).    [Back]

Note 58   Para 5.36.    [Back]

Note 59   Para 5.32.    [Back]

Note 60   Para 5.36.    [Back]

Note 61   M & W Grazebrook Ltd v Wallens [1973] 2 All ER 868, 869-70.    [Back]

Note 62   See para 3.21 above.    [Back]

Note 63   See paras 3.53-3.57 below for whether the mediator should be entitled to refuse to give evidence if the other participants agree to allow evidence to be admitted.    [Back]

Note 64   Para 5.33.    [Back]

Note 65   Evidence (Scotland) Act 1853, s 3.    [Back]

Note 66   Walker & Walker, The Law of Evidence in Scotland, p 380; Rumping v DPP [1964] AC 814, Lord Reid at 833-4.    [Back]

Note 67   Wilkinson, Scottish Law of Evidence, p 103.    [Back]

Note 68   Rattray v Rattray (1897) 25R 315.    [Back]

Note 69   Proposition 11, para 5.37.    [Back]

Note 70   Proposition 12, para 5.37.    [Back]

Note 71   Lawrie v Muir 1950 JC 19; HMA v Turnbull 1951 JC 96; Wilkinson, Scottish Law of Evidence, pp 118-122.    [Back]

Note 72   Recommendation 10, para 3.40 below.    [Back]

Note 73   Paras 2.13 and 3.21 above.    [Back]

Note 74   Proposition 22, para 5.45.    [Back]

Note 75   Family Conciliation in Scotland, Scottish Office Central Research Unit Papers (1990), para 3.5.    [Back]

Note 76   Proposition 10, para 5.36.    [Back]

Note 77   AB v CD (1851) 14D 177, 180; Wilkinson, Scottish Law of Evidence, p 105.    [Back]

Note 78   Proposition 13, para 5.38.    [Back]

Note 79   Proposition 14, para 5.40.    [Back]

Note 80   Proposition 18, para 5.43.    [Back]

Note 81   Proposition 20, para 5.44.    [Back]

Note 82   Para 5.39.    [Back]

Note 83   See para 2.4 above.    [Back]

Note 84   Para 5.40.    [Back]

Note 85   Para 5.43.    [Back]

Note 86   Para 5.44.    [Back]

Note 87   Recommendation 8, para 3.31 above.    [Back]

Note 88   Para 3.26 and Recommendation 6 at para 3.29 above.    [Back]

Note 89   Paras 5.55-5.63.    [Back]

Note 90   Australia, Family Law Act 1975, ss 18, 62 and 62A; Ontario, Family Law Act 1986, s 3(6); New York, Family Court Act, article 9.15.    [Back]

Note 91   Report of the Matrimonial Causes Procedure Committee (1985), para 3.5.    [Back]

Note 92   Family Law: The Ground for Divorce, Law Com No 192 (1990), para 5.48.    [Back]

Note 93   If information is confidential in the legal sense unauthorised use or disclosure to a third party gives rise to a liability in damages and such use or disclosure may also be prevented by interdict.    [Back]

Note 94   M D Broun and S G Fowler, Australian Family Law and Practice Reporter (1988), paras 628-633.    [Back]

Note 95   Para 5.60.    [Back]

Note 96   Para 5.75.    [Back]

Note 97   Para 5.76.    [Back]

Note 98   Para 5.77.    [Back]

Note 99   Recommendation 10, para 3.40 above.    [Back]

Note 100   Para 5.73.    [Back]

Note 101   Proposition 26, para 5.63.    [Back]

Note 102   Kennedy v O 1975 SC 308, 315.    [Back]

Note 103   McGregor v D 1977 SC 330, 336.    [Back]

Note 104   Statement of Principles of Conciliation, para 4.    [Back]

Note 105   Proposition 27, para 5.71.    [Back]

Note 106   Social Work (Scotland) Act 1968, s 32.    [Back]

Note 107   Proposition 28, para 5.71.    [Back]

Note 108   Social Work (Scotland) Act 1968, s 32(2).    [Back]

Note 109   Adoption (Scotland) Act 1978, s 16(2) applying to petitions for adoption and applications for freeing a child for adoption.    [Back]

Note 110   Social Work (Scotland) Act 1968, ss 49 and 50.    [Back]

Note 111   1968 Act, s 18.    [Back]

Note 112   1991 SCLR 481.    [Back]

Note 113   Or a voluntary association in whom a local authority has vested parental rights by virtue of a resolution under s 16(1)(b) of the Social Work (Scotland) Act 1968.    [Back]

Note 114   As pursuer, defender or party minuter.    [Back]

Note 115   Social Work (Scotland) Act 1968, s 80.    [Back]

Note 116   Proposition 24, para 5.54.    [Back]

Note 117   Age of Legal Capacity (Scotland) Act 1991, s 1(1)(b) as read with s 9.    [Back]

Note 118   1991 Act, ss 1(1)(a) and 2.    [Back]

Note 119   Proposition 34, para 5.78.    [Back]

Note 120   Recommendation 10, para 3.40 above.    [Back]

Note 121   Recommendation 9, para 3.35 above.    [Back]

Note 122   Para 5.42.    [Back]

Note 123   Milne v Milne 1987 SLT 45; Horton v Horton 1992 SLT (Sh Ct) 37.    [Back]

Note 124   Family Law (Scotland) Act 1985, s 16.    [Back]

Note 125   Nichols, The Family Law (Scotland) Act 1985, (2nd edn) para 6.1.    [Back]

Note 126   Proposition 30, para 5.74.    [Back]

Note 127   Recommendation 8, para 3.31 above.    [Back]

Note 128   Proposition 29(a), para 5.73.    [Back]

Note 129   Recommendation 10, para 3.40. See also para 3.42 above.    [Back]

Note 130   Recommendation 10, para 3.40.    [Back]

Note 131   Proposition 36, para 5.81.    [Back]

Note 132   Para 4.    [Back]

Note 133   See our Report on Breach of Confidence (Scot Law Com No 90, Dec 1984), Part II.    [Back]

Note 134   Proposition 37, para 5.85.    [Back]

Note 135   Proposition 38, para 5.85.    [Back]

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Scottish Law Commission (Reports)

SCOTTISH LAW COMMISSION

(Scot Law Com No 136)

Report on Evidence: Protection of Family Mediation

SCOTTISH LAW COMMISSION

Evidence

Contents

Part 1 Introduction

Part 2 The need for legislative intervention

Part 3 The new statutory protection in detail

Part 4 List of Recommendations

Appendix A

BILL