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It is becoming more common that parties are choosing mediation as a means of attempting to resolve their family law matters, rather than going through the court process and having to confront the costs and delays involved with traditional litigation.

In mediation, the parties (and often their respective counsel) engage the services of a mediator to discuss the positions of the parties, their reasoning behind their positions, and attempt to assist the parties in reaching a resolution that reflects the joint interests of the parties.  This is effectively an interest-based negotiation that is assisted by a neutral third party.

Typically, the parties choose a mediator who is a trained legal professional such as a lawyer or retired judge who is able to view the positions of the parties and all the related circumstances from a legal perspective and in turn provide an opinion as to how the matter might fare in a trial.  This has the added benefit of placing the parties third party who understands the law and the dynamics of the issues at play.

A benefit of mediation is that it helps parties attempt to resolve matters in a more amicable manner as the parties are heavily involved in the resolution process.

In order to encourage parties to fully engage in the resolution process, the law protects parties by providing the security of confidentiality over all matters that are discussed in resolution.  It is accepted law that discussions between parties regarding settlement, such as at mediation, are “without prejudice,” meaning that anything the parties say at mediation cannot be used outside of mediation, unless specifically agreed to between the parties.  This includes admissions by parties, settlement offers, or even agreements that arise from mediation.

However, there are certain exceptions to the confidentiality that protects parties to mediations, and parties should be aware of these exceptions before proceeding to take actions on the belief that everything at mediation is strictly confidential.

In particular, and what appears to be a common misunderstanding, is the common law settlement privilege – the “without prejudice” nature of settlement discussions at mediation – is ceases to be privileged if it is necessary to disclose it to the Court to prove the scope of settlement, or even the existence of a settlement agreement.

This exception to the privilege attached to communications at mediation has been accepted by the highest court in Canada – the Supreme Court, in the case of Union Carbide Canada Inc. v. Bombardier Inc., [2014] 1 SCR 800, wherein the Court stated:

Once the parties have agreed on a settlement, the general interest of promoting settlements requires that they be able to prove the terms of their agreement. Far from outweighing the policy in favour of promoting settlements (Sable Offshore, at para. 30), the reason for the disclosure — to prove the terms of a settlement — tends to further it. The rule makes sense because it serves the same purpose as the privilege itself:  to promote settlements.

This principle of ensuring that parties to mediation, or other settlement discussions, are able to prove the scope or existence of an agreement, is so fundamental to the objective of promoting settlement that the Court in Union Carbide found that this exception even supersedes explicit clauses in mediation agreements that would otherwise make any agreement arising from mediation strictly confidential.

While this may seem that the Courts are overriding the contractual common law protections of parties – it is a sensible principle that prevents the fruits of mediation from being lost by a party who refuses to comply with an agreement.  For instance, consider the case of two parties who enter into mediation, and in the course of their discussions agreed to waive any claim for spousal support against each other.  If one of those parties, subsequent to the mediation, attends applies for spousal support through the Courts, arguing that the original agreement reached at mediation is confidential would only serve to eliminate the purpose and utility of the mediation.  If agreements, and the scope of the agreements cannot be disclosed to the Courts, there would be no way to ever prove the Agreement existed, and as a result, no Agreement arising from mediation would ever be enforceable.

It is important for individuals to be aware of this exception, not only because parties to a mediation must be aware of the limits on the confidential scope of the mediation process, but also because parties must be aware of their rights to put otherwise confidential information before the Courts to enforce or prove agreements arising from mediation.

The lawyers are Mincher Koeman Family Law Chambers have years of experience in assisting Clients at mediation, and in helping ensure any agreements arising from the mediation process are adhered to.  If you need legal assistance, we have the experience to help you.  Contact us at 403 910 3000 or reception@mincherkoeman.com.

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