Case affirms confidentiality – even without specific clause

By Mia Clarke, Associate Editor

A recent Superior Court of Justice case reinforces the importance of confidentiality in mediated settlements, St. Catharines family lawyer Sharon Silbert tells Law Times.

“I think that it is reassuring that the judge in this decision pointed out that even in the absence of a formal contract, settlement privilege would likely apply but it still makes sense for mediators to include confidentiality clauses in their mediation contract,” says Silbert, principal of Sharon B. Silbert Professional Corporation.

In the case, Justice Patrick J. Monahan denied the respondent’s request for copies of a mediation file related to child support, reports Law Times.

“Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. It enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation, thereby promoting honest and frank discussions and the possibility of achieving settlement. Settlement privilege applies even in the absence of contractual provisions providing for confidentiality,” wrote Monahan.

He also noted that there were “contractual provisions expressly providing that the mediator’s file would be inadmissible in any subsequent litigation,” reports Law Times.

Silbert, who was not involved in the case and speaks generally, tells the publication that she was surprised the argument had been made.

“Settlement privilege is a concept that extends to all kinds of negotiation efforts to reach a settlement in family law matters, not only those that are covered by a formal agreement to mediate as this one was, but also because as the judge I think rightfully pointed out in the decision, the contents of the notes weren’t really relevant,” she says.

Silbert says it’s important to establish expectations around confidentiality in mediation. She says participants should be open about their concerns and not have to worry about them being brought up later in court.

“Mediation forms a fairly significant part of my practice,” she tells Law Times.

“As part of my own mediation practice, I do have clients sign a formal agreement to mediate that does include confidentiality provisions confirming that the matters that are discussed in mediation and my notes, for example, cannot be used in litigation if the issue doesn’t get settled.”