Judge reinforces importance of confidentiality in mediation

Ruling further reinforces the importance of settlement privilege and confidentiality in the context of mediation. Understanding that conversations held during mediation cannot be used in subsequent litigation helps participants feel at more at ease to have productive discussions.

By AdvocateDaily.com Staff

A recent Ontario Superior Court decision underscores the importance of confidentiality for mediation matters, St. Catharines family lawyer and mediator Sharon Silbert tells AdvocateDaily.com.

In his decision, Justice Patrick Monaghan denied a man’s attempt to compel production of the mediation file for a session between him and his former wife, which included intake forms and the mediator’s screening report.

Silbert, principal of Sharon B. Silbert Professional Corporation, says she was both relieved and unsurprised by the ruling.

“Settlement privilege and confidentiality are extremely important in the context of mediation — both procedurally and in terms of effectiveness of the process,” she explains. “So having some assurance that conversations that take place in mediation cannot be used in subsequent litigation is helpful to set the stage for productive discussion to take place.”

In the case before Monaghan, the parties were divorced in 2009 but attended mediation in 2013 to sort out their differences over the issue of child support. Litigation eventually ensued in 2016 over a parenting plan for the former couple’s child, and that’s when the man sought the mediation records.

But the judge rejected the request, emphasizing the importance of settlement privilege in allowing parties to enter negotiations without fear that information disclosed during the process can be used against them in litigation.

“Although there are certain recognized exceptions to settlement privilege, none of these exceptions applies in this case,” wrote Monaghan. “To come within an exception to settlement privilege, it must be shown on a balance of probabilities that a competing public interest in disclosure outweighs the public interest in encouraging settlement. The contents of the mediator’s file are not relevant to any issue in dispute in the litigation. There is no basis to displace settlement privilege with respect to [the Mediator’s] file, including her screening notes.”

In order to arrive at a mutually acceptable agreement, Silbert says mediators must be free to explore the individual goals, concerns and priorities of each party.

“People are often hesitant to share this information with one another, out of concern that they might inadvertently give the other party the upper hand in litigation that might be ongoing, or that might be commenced in future.”

Silbert says many mediators drive home the message by having parties sign agreements containing confidentiality clauses, which is what happened in the case before the court.

The man’s lawyer attempted to argue that a provision in the mediation agreement made the file inadmissible only “to the extent permitted by law,” suggesting this showed the parties had contemplated its possible use in litigation, but Monaghan was not convinced.

“In my view, the words ‘to the extent permitted by law’ suggest precisely the opposite, namely, that disclosure obtained during the mediation shall be inadmissible unless there is some positive legal requirement for disclosure,” he wrote.

“I agree with the judge’s interpretation,” Silbert says, noting that a positive legal duty to disclose only arises in certain limited circumstances, such as when the information raises concerns about the safety of a child.

“That was not an issue in this case,” she adds.

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