By Hilary Linton
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.
Closed mediation generally creates a “safe” space for parties to fully consider options and discuss proposals, without fear of any of it being used against them.
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. Open mediation agreements often limit or prescribe exactly what information the mediator or parties may disclose to the court if requested.
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 otherwise remain both without prejudice and confidential.
Open mediation can be useful where parties do not trust one another to bargain in good faith and feel that allowing a court to know what happened is necessary to ensure fairness.
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.