As I observed, in my recent post – ‘Requirement for Statements of Truth in key pre-action documents’, p.89 of the CJC Review of Pre-Action Protocols Final Report Part 1, August 2023′, states:

‘3.1 3.2 – The parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute. … There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings.’

In his excellent new book, ‘Advanced Mediation Advocacy’ (2024), on pp. 108 & 109, Andrew Goodman comments:

‘… You should advise your client that if the settlement agreement takes effect in law as a contract, it can be impeached and set aside like any other contract, for misrepresentation, mistake, undue influence or duress at the instance of the innocent party, irrespective of the fact it came about through mediation. Neither the party representative, nor the mediator can become a conduit for fraud. … One of the skills of the mediator is to suspend disbelief in the face of the obvious, this in order to create rapport with both sides, offer empathy to each and project neutrality. The bi-partial role of the mediator is designed to prevent obvious wrongdoing, such as allegations of fraudulent misconduct, from undermining the process from the outset. However ethical issues which go directly to the continuing viability of the mediation need to be addressed. There is in such circumstances a line which, if crossed, will force the mediator to end the mediation. He or she cannot simply rely on the presence of party representatives to avoid the consequences of ethical issues.’

Thus, before any statement of fact is alleged, i.e. in a key P.1 pre-action communication, or by MA.1 to M on behalf of P.1, or by P.1 to M (i.e. in the presence of MA.1), which could later result in a challenge being made by P.2 about the validity of a settlement agreement reached in mediation, e.g. on the grounds of misrepresentation, a prudent & dilligent MA should rigorously interrogate & reality-test P’s narrative.

This scrutiny needs to undertaken before any fact is stated in: (i) a key pre-action communication; &/or (ii) mediation.

In other words, a prudent & dilligent MA must accept what P tells him at face value, i.e. without undertaking a rigorous enquiry & independent fact-checking.

Where e.g. P.1/MA.1 have stated ‘X’ in a key pre-action communication & in mediation P.1 instructs MA.1 to assert ‘Y’, then if only X or Y can be true, i.e. because logically X & Y cannot both be true, then MA.1 must inform P.1 that since P.1 has already ‘pinned his colours to the mast’ by asserting X, that for professional, i.e. ‘ethical’ reasons, MA.1 will no longer be able to represent P.1, if P.1 insists that MA.1 assert Y. Axiomatcially, a legal representative should decline to act for P.1 by advancing a case based upon Y, where P.1 (whether legally represented at the time or not), previously advanced a case in a pre-action communication, based upon X. That is because Y is obviously & self-evidently a lie as it contradicts X & cannot logically be reconciled with & distinguished from X.