The difference between closed and open mediation by Hilary Linton, March 2004. Closed mediation Closed mediation is usually “without prejudice” and “confidential”. Without prejudice means that everything said during the mediation, subject to certain limited exceptions, is legally considered 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 final and binding 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 usually allow the parties to discuss the mediation with anyone whose advice is required, such as their lawyers or accountants. Most parties prefer closed mediation because they feel freer to express views and concerns and discuss options without the fear that what they say will end up being used against them somehow. Many parties also feel that entering into a closed mediation agreement helps build trust between them. 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 privileged and confidential. Some parties prefer open mediation, particularly if they doubt the good faith of the other person. By agreeing to open mediation, parties can demonstrate to the other that they are willing to do what the other needs, in terms of process, to try to reach resolution. 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 mediation agreement with each other and the mediator, so that everyone understands the ground rules.