Hermes lost £350 Bean-to-cup coffee machine being returned to retailer **WON**

[BankFodder]

Incidentally, if you want to mention the bread machine and the mediator says that it's not relevant or for some reason rather is not appropriate to mention it, tell the mediator to mention it anyway and remind the mediator that they are simply a conduit for communications between you and Hermes

[littlepitch]

Had the mediation which was quite painless. I am obliged to keep the agreement confidential, however I feel that I can say that the mediation followed the same pattern as other cases on this website. A bit of to-ing and fro-ing, I stood my ground and ended up a happy man. 

 

Thanks Bankfodder for your guidance.  I am making a donation. 

[dx100uk]

no you are not obliged to keep the eventual agreement confidential.

just what was the mediation service actually said. 

 

so spill the beans.

well done CAG

 

yes please...don't forget to donate to keep us here. however small....

 

dx

 

 

[BankFodder]

Well done on having achieved a result. I hope that the whole experience has been useful to you. It will put you in good stead if you have future conflicts with delivery companies or anyone else.

I'm very curious to know why there is an obligation confidentiality. Please could you tell us who it is who asked or insisted on this.

 

[littlepitch]

This sentence appears in the agreement issued by the mediator:

 

The parties will keep the information contained in this agreement confidential and not use it for any other purposes.

[BankFodder]

Thanks for this. This is not a confidentiality requirement which has been negotiated between you and Hermes. This is some kind of confidentiality requirement which has been asserted by the mediator. I understand that it has been asserted by the mediator after the agreement with Hermes has been reached and anyway it is not part of the agreement between you and Hermes. Not only that, you didn't agree to confidentiality as a condition of anything.

This means that the confidentiality requirement has been unilaterally imposed and is unenforceable. It is contrary to the principles of open justice – and even though this hasn't been dealt with in open court, it is important to understand the way it has been handled and the agreements which have been made in order to show others the benefits or dis-benefits of going into the mediation process.

It's up to you whether you want to keep the agreement secret. If a confidentiality requirement had been imposed by Hermes as a condition of some settlement then it might have been binding – but this is the mediator acting outside their brief – in the same way that we are finding sometimes that mediators are applying undue pressure to parties – normally the weaker litigant in person – to give up some of their rights.

If you would be happy to tell us what your settlement with Hermes was and also your details of the mediation story and in particular did you come under any pressure from the mediator to compromise then we would be very interested to know it.

[littlepitch]

The mediator began by asking me if I was willing to compromise in order to settle today.  I replied that I was willing to compromise by not going to court. The mediator then asked me to put forward my case.  I asked if she was aware of the history and she said that she was not.  I briefly explained that Hermes had lost my coffee machine but refused to pay more than £20 because I had not taken out their insurance.  I said that this was an unfair contract term according to the Consumer Rights Act 2015 and that I was willing to go to court if Hermes refused to pay up.

 

The mediator then called Hermes and called me back about five minutes later. She said that Hermes were not offering to pay me because I had not taken out insurance.  I repeated my position about an unfair contract term and my willingness to go to court.  I also mentioned the fact that the bread machine was lost at the same time was too much of a coincidence and pointed towards criminality.

 

The mediator called me back again after speaking to Hermes.  Hermes now said that their maximum payout would be £300 even if someone had taken out insurance and that is what they were now offering me.  I said that this was still not acceptable and I repeated my position about an unfair contract term and my willingness to go to court.

 

The mediator called me back again after speaking to Hermes.  This time Hermes offered to pay the full amount plus my court fee of £35.  I didn’t bother insisting on the interest as this was only £2.

 

The whole process took about 35 minutes and the written agreement was issued by the mediator about 20 minutes later.  I did not feel under pressure from the mediator at any stage.  In fact, she remained impartial the whole time.

[BankFodder]

Great. Thank you very much indeed.

Very encouraging that the mediator didn't put any pressure. There have been at least two or three cases where apparently the mediator was fairly critical people wouldn't compromise.

You stood your ground – well done. I'm quite sure that the prospect of having to go to court and face an investigation by the judge about the fairness of their insurance was too much to bear.

So I understand that the question of confidentiality wasn't even raised at all during the discussion and this was simply added by the mediator after everything had been done and dusted?

[BazzaS]

Mediation for county court claims is confidential in so far as information revealed during mediation, such as willingness to settle for X amount, this being less than originally claimed for,

can't be relied on in court / revealed to the court IF the mediation fails and the claim proceeds to court.

 

The OP (if challenged) can state that this was their understanding, not that the settlement if the claim in full was in confidence, because it never proceeded to the court hearing.

[BankFodder]

Thanks.  In other words this amounts to "without prejudice" rather than confidential

[BazzaS]

It depends. The bar on referring to the mediation during a subsequent court hearing is certainly on a par with "without prejudice" (not even the usual "without prejudice, save as to costs" which is how it is usually read).

 

If the OP agreed to confidentiality : then it could be expected. If not, then the default would be not being able to refer to it in a subsequent court hearing.

I'll check if the SCT/CC Mediation documentation makes it any clearer.......

 

[QUOTE]

What about confidentiality?

 

Discussions with the mediator are confidential and therefore without prejudice– if the mediation fails, no details will be entered on the file.

The mediator will only retain their notes for a short period, and they will be kept securely.

The exceptions would include disclosure of a criminal act or breach of ethics

Confidentiality is spelt out to the parties to ensure they don’t use mediation asevidence in court and that they are comfortable making difficult decisions that may cause loss of face.

[END-QUOTE]

 

p.34 of : https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/civil_court_mediation_service_manual_v3_mar09.pdf

There doesn't seem to be any direction regarding confidentiality in the standard SCt?CC directions regarding mediation.

[BankFodder]

There is a huge difference between "without prejudice" and "confidentiality".

They should not be confused with each other

[Sad Hippo]

On 07/07/2021 at 16:56, littlepitch said:

The mediator began by asking me if I was willing to compromise in order to settle today.  I replied that I was willing to compromise by not going to court. The mediator then asked me to put forward my case.  I asked if she was aware of the history and she said that she was not.  I briefly explained that Hermes had lost my coffee machine but refused to pay more than £20 because I had not taken out their insurance.  I said that this was an unfair contract term according to the Consumer Rights Act 2015 and that I was willing to go to court if Hermes refused to pay up.

 

The mediator then called Hermes and called me back about five minutes later. She said that Hermes were not offering to pay me because I had not taken out insurance.  I repeated my position about an unfair contract term and my willingness to go to court.  I also mentioned the fact that the bread machine was lost at the same time was too much of a coincidence and pointed towards criminality.

 

The mediator called me back again after speaking to Hermes.  Hermes now said that their maximum payout would be £300 even if someone had taken out insurance and that is what they were now offering me.  I said that this was still not acceptable and I repeated my position about an unfair contract term and my willingness to go to court.

 

The mediator called me back again after speaking to Hermes.  This time Hermes offered to pay the full amount plus my court fee of £35.  I didn’t bother insisting on the interest as this was only £2.

 

The whole process took about 35 minutes and the written agreement was issued by the mediator about 20 minutes later.  I did not feel under pressure from the mediator at any stage.  In fact, she remained impartial the whole time.

Congratulation and it is very helpful for me to claim from Hermes. Cheers   

[BazzaS]

15 minutes ago, BankFodder said:

There is a huge difference between "without prejudice" and "confidentiality".

They should not be confused with each other

Best to let the DoJ know they need to get the manual to make it clearer, as my (attributed!) quote was direct from p.34 of their manual …..

[BankFodder]

Well in that case the DOJ has it wrong.

It wouldn't be the first time