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What is the difference between closed and open mediation?
Closed Mediation
Most family mediation is closed mediation. Closed mediation is “without prejudice” and “confidential”. Without prejudice means that everything said during the mediation, subject to certain limited exceptions, is legally treated as a “without prejudice settlement discussion”. Neither party nor the mediator may give evidence in a legal proceeding about what was said during mediation; only the terms of any settlement may be disclosed.
Parties in closed mediation usually agree, as well, that their negotiations will be confidential, meaning neither of them, nor the mediator, will talk to third parties about what happened in mediation. Such confidentiality provisions should however allow the parties to discuss the mediation with anyone whose advice is required, such as their lawyers or accountants.
Open Mediation
Open mediation is generally neither without prejudice nor confidential. In open mediation it is understood that either party or the mediator may give evidence in a legal proceeding about what happened during the mediation, including evidence about what offers were made.
In government-funded mediation at Ontario’s family courts, however, open mediation is defined differently. There, open mediation is very similar to closed mediation except that the mediator is permitted to file a report with the court identifying any unresolved issues. But unlike traditional open mediation, court-connected open mediation agreements provide that the process will remain both without prejudice and confidential.
Because of the distinct differences between open and closed mediation, and because of the different definitions of open mediation, it is critical that parties considering mediation first enter into a written mediation agreement with each other and the mediator, so that everyone understands the ground rules.
What is the difference between closed and open mediation?
Closed Mediation
Most family mediation is closed mediation. Closed mediation is “without prejudice” and “confidential”. Without prejudice means that everything said during the mediation, subject to certain limited exceptions, is legally treated as a “without prejudice settlement discussion”. Neither party nor the mediator may give evidence in a legal proceeding about what was said during mediation; only the terms of any settlement may be disclosed.
Parties in closed mediation usually agree, as well, that their negotiations will be confidential, meaning neither of them, nor the mediator, will talk to third parties about what happened in mediation. Such confidentiality provisions should however allow the parties to discuss the mediation with anyone whose advice is required, such as their lawyers or accountants.
Open Mediation
Open mediation is generally neither without prejudice nor confidential. In open mediation it is understood that either party or the mediator may give evidence in a legal proceeding about what happened during the mediation, including evidence about what offers were made.
In government-funded mediation at Ontario’s family courts, however, open mediation is defined differently. There, open mediation is very similar to closed mediation except that the mediator is permitted to file a report with the court identifying any unresolved issues. But unlike traditional open mediation, court-connected open mediation agreements provide that the process will remain both without prejudice and confidential.
Because of the distinct differences between open and closed mediation, and because of the different definitions of open mediation, it is critical that parties considering mediation first enter into a written mediation agreement with each other and the mediator, so that everyone understands the ground rules.