Facing separation and financial upheaval is daunting. The process requires tough conversations, and naturally, people fear that any compromise they suggest or any admission they make will be used against them later in court.
Fortunately, the law provides a robust shield to encourage open communication and honest negotiation, and it applies fully to family mediation as it does to court-led processes like the Financial Dispute Resolution (FDR) appointment. This shield is called “Without Prejudice” (WP) privilege, and it protects far more than just your formal offers—it protects the entire mediation process.
What is 'Without Prejudice' Protection?
The “Without Prejudice” rule is a rule of evidence rooted in public policy: it’s in the public interest to encourage the settlement of disputes. If people could not negotiate without fear, they would never settle.
The rule operates to exclude any communication made in a genuine attempt to settle a dispute from being admissible as evidence in court proceedings if the settlement fails. Critically, this protection is not a narrow shield for specific “offers.”
This broad interpretation was powerfully confirmed in the landmark civil case, Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, where the Court of Appeal established that the privilege covers the entire chain of communication and the whole process of negotiation. The court is not permitted to “salami slice” the discussions to pick out only formal offers. In short, if you are genuinely negotiating, everything said is privileged.
Mediation vs. FDR: The Same Solid Protection
In the family context, this wide protection applies equally to both voluntary mediation and the mandatory court process. This is a crucial and reassuring fact that clients can and should lean into.
Family Mediation: Everything discussed in the session is expressly agreed to be without prejudice, including the initial conversations, the full information exchange, and the specific settlement proposals.
Financial Dispute Resolution (FDR): The court process reinforces this through the Family Procedure Rules (FPR). FPR 9.17(1) defines the entire hearing as a negotiation, applying the wide privilege. Safeguards for the rule include the mandatory disqualification of the FDR judge (FPR 9.17(2)) from hearing the final trial, guaranteeing that the privileged nature of the entire meeting is protected from the trial judge.
The Limits: When the Shield Can Be Pierced
The ‘without prejudice’ rule is strong, but it is not absolute. The court has carved out specific, limited exceptions to ensure the privilege is not abused. These exceptions fall into two main categories:
Establishing Settlement: If the parties disagree on whether a binding agreement was reached, the court may be allowed to look at the WP material to determine: 1. If a concluded compromise agreement exists. 2. The specific terms of that agreement.
Preventing Abuse or Misconduct: The privilege cannot be used as a “cloak” for dishonesty. The court may look behind the WP shield to establish: 1. Misrepresentation, Fraud, or Undue Influence: To prove that an agreement should be set aside (or upheld) because one party was dishonest during negotiations. 2. Unambiguous Impropriety: To admit evidence of statements that constitute blackmail, perjury, or other gross misconduct. This is a high threshold, reserved for the clearest cases of abuse of the negotiation process.
In the vast majority of cases, where negotiations are conducted honestly and in good faith, the without prejudice protection remains fully intact. These exceptions exist only to ensure justice is done where the integrity of the process itself has been compromised.
Conclusion
Whether you choose the privacy of mediation or the court-assisted FDR, the legal protection is robust. The goal is to get you to share information, negotiate and compromise, and the law ensures your willingness to do so cannot be weaponised against you later.
If you are entering family mediation, remember: the ‘without prejudice’ rule covers your entire mediated effort to settle. It’s your safety net. Use it to be as open and honest as possible to secure a fair and lasting resolution for your family. Don’t hold back from exploring options for fear of prejudicing your case.