the decision in Thakkar, it raises an interesting question in relation to the extent to which statements made in mediation can be disclosed. We often think of mediation and the documentation produced during the mediation process as entirely cloaked by "without prejudice privilege" which must remain confidential absent an agreement by the parties to waive that privilege. This principle (as well as the fact that all discussions must remain confidential) is usually expressly stated in the mediation agreement itself. In Savings Advice, the defendant had made statements of the costs that would be incurred in pursuing a case to trial in mediation correspondence. The claimant subsequently accepted an offer of settlement but there was a dispute over the costs that it could claim, including the premium for After the Event insurance, which was calculated by reference to the defendant's costs. The insurer had used that estimate in calculating its premium. However, the defendant subsequently stated that its costs would have been at a level lower than it had indicated in the mediation. In assessing the defendant's liability for the insurance premiums, the Court held that "without prejudice privilege" protects a party from the disclosure of admissions or concessions made in negotiations – but not the costs information contained in correspondence as that was purely factual information relating to After the Event insurance. The court further held that whilst the discussions were confidential, the court was at liberty to order disclosure where that was necessary in the interests of justice. The court held that the confidentiality clause in question allowed disclosure of the costs information and the use of the term "w.p. save as to costs" on the defendant's correspondence only served to highlight the intention of the parties. The rationale for unravelling the "cloak of mediation" was set out as follows: "In my judgment it is imperative that when parties enter into a formal mediation or informal negotiations for settlement of a claim that they do so in the full knowledge of their opponent's costs. The amount of the costs of litigation condition any subsequent negotiations or mediation that may follow." Whilst this decision very much turned on its particular facts, the circumstances in which a party to a mediation may seek to challenge the scope of the privilege and confidentiality of the communications may be increase and give rise to greater uncertainties when advising clients. Nevertheless, mediation remains a useful and efficient mechanism for dispute resolution and functions when each party accepts they are facing risk, but do bear in mind the following: 1. Confidentiality of the mediation – in the post Savings Advice Limited world, it is preferable to carefully limit the exceptions to the duty of confidentiality and avoid writing correspondence that is "without prejudice save as to costs". 2. If there is a genuine reason not to mediate, then that can be defensible. Otherwise be cautious about refusing to engage in the process. 3. Silence in the face of an invitation to participate in ADR is unreasonable and can attract a costs penalty (PGF II SA v OMFS CO 1 Ltd (2013)) 4. Time sensitivity: an early mediation can be successful before the parties become entrenched in their positions.