This paper was first presented to the Ontario Bar Association (OBA) on October 7, 2022.
One of the main reasons parties choose family mediation is their expectation of confidentiality. Family law cases are personal, emotional and private. They involve children and family members. They require parties to disclose details of their personal and business finances. There are many good reasons to want to keep all of this private and confidential.
This paper addresses some of the complex aspects of family mediation confidentiality, and how they impact mediators, as well as family arbitrators, parenting coordinators, counsel and parties.
PART ONE: TWO FOUNDATIONAL CASES
Rudd v Trossacs
In the 2006 decision in Rudd v Trossacs  the Court was asked to compel a mediator to give evidence about whether an individual was intended to be party to the settlement that arose from the mediation. The Court noted the important public interest in protecting the confidentiality of mediation that generally outweighs the interest in compelling the evidence of the mediator. The mediation in Rudd took place pursuant to the mandatory mediation provisions of Rule 24.1 of the Rules of Civil Procedure. There was a signed Mediation Agreement stipulating that the process was intended to be confidential and without prejudice.
The ability of the parties to engage in full and frank disclosure is fundamental to the mediation process and to the likelihood that it will lead to resolution of a dispute. There is a danger that they will be less candid if the parties are not assured that their discussions will remain confidential, absent overarching considerations such as the revelation of criminal activity.
The Court analyzed the issue through the lens of the common law principles relating to privilege, known as the Wigmore rule. That rule recognizes privilege for confidential information in certain important societal relationships. The four conditions that should be applied to determine whether communications are privileged at common law are:
- The communications must originate in a confidence that they will not be disclosed.
- The element of confidentiality must be essential to the maintenance of the relationship in which the communications arose.
- The relationship must be one that, in the opinion of the community, ought to be ‘sedulously fostered’, and
- The injury caused to the relationship as a result of the disclosure must be greater than the benefit gained for the correct outcome of the matter.
The Court found that:
- Based on the facts of the case, the first requirement was met. There was a signed mediation agreement that included provisions for confidentiality, including a specific prohibition against subpoenaing the mediator’s notes and recollections.
- The Court referred to leading literature in the field that explained how free and frank discussions are a necessary component of successful mediation, and found the second condition met.
- Based on the mandatory nature of the mediation under the Rules of Civil Procedure, the third condition was met, and
- The fourth condition, in this case, was met as well.
The analysis under the fourth condition involves a balancing of the public interest in disclosure against the interest in preserving confidentiality of communications that occur during mediation. The Court in Rudd noted that although the mediator’s evidence might be helpful in determining the terms of the settlement, other evidence was available. An important factor was that the parties had specifically agreed in their Mediation Agreement to not make the mediator a witness. Absent an overriding public interest in disclosure, that agreement, the Court found, should be respected.
Association de mediation familiale du Quebec v Bouvier
In this 2021 decision of the Supreme Court of Canada, the principle of waiver of settlement privilege, recognized in Union Carbide Canada v Bombardier Inc. , was applied to a Quebec family law mediation. The exception to settlement privilege recognized in the Union Carbide decision allows otherwise protected communications to be disclosed in order to prove the existence or terms of a settlement.
The parties in Bouvier had attended a court-connected family mediation which resulted in a “summary of mediated agreements” drafted by the mediator but not signed by the parties. Sometime later, one of the parties sought a different outcome in court. The responding party argued that the matter had been settled already, seeking to rely on the summary of mediated agreements as evidence that an enforceable agreement had been reached in mediation.
Notwithstanding that the parties had signed a Mediation Agreement providing that the process was confidential, and that they had not signed any settlement document, the Court ruled that …” their subsequent conduct indicates that they had an agreement of wills that was clear enough for the formation of a true agreement reflecting the terms recorded in the summary of mediated agreements”.
As a result, the Court found it was appropriate to waive settlement privilege for the purpose of establishing the existence or terms of a settlement. The summary of mediated agreements was accepted as evidence of an agreement made at the mediation because the parties’ own post-mediation actions were consistent with the assertion that they had reached an agreement in the mediation. The court noted that the parties could have explicitly opted out of a waiver of settlement privilege in their Mediation Agreement but did not do so.
It is noteworthy that there was a robust and well-reasoned dissent by three of the Justices, addressing the unique aspects of family mediation, and particularly Quebec’s court-connected mediation program in which counsel are not permitted to participate, that warranted a different outcome in their view.
PART TWO: SPECIAL CONSIDERATIONS IN FAMILY LAW MEDIATION
- Confidentiality, Open and Closed Mediation, Without Prejudice and Exceptions
The first step in any family dispute resolution process— mediation, arbitration or parenting coordination– is to ensure the parties have a meeting of the minds about the process they are committing to, before they sign the process agreement. In particular, they should understand the concepts of confidentiality and without prejudice, and the exceptions to those concepts.
‘Confidentiality’ and ‘without prejudice’ are different principles that serve different purposes.
Confidentiality: This means that neither party nor the mediator will speak to anyone outside the process, nor share any information from the mediation with anyone outside the process. Confidentiality is what makes family mediation a ‘safe place to have difficult conversations’.
Confidentiality offers each party the freedom to speak their mind, share sensitive disclosures and express concerns without the risk that this information will be used in unintended ways. Confidentiality limits the ability of a party to seek to improperly influence the process by sharing information about it with others. This is particularly important in family mediation where it is all too common for children, family members, neighbours, caregivers, and employers to be drawn into the dispute by one party or the other.
Confidentiality serves another important purpose in family mediation. It ensures, to the extent possible, safety for survivors of family violence and their children, and also for mediators. Separate, confidential intake meetings between the mediator and each party, prior to the execution of the Agreement to Mediate, facilitate the disclosure of known factors that predict a risk of harm. This important step, known as ‘screening’, is necessary to ensure that mediation is appropriate in the circumstances of each case, and that any appropriate safety planning for the mediation can be done. Maintenance of confidentiality with respect to that information is necessary to protect the safety of the person who disclosed it.
Open and closed mediation: Most family mediation in Ontario is “closed”, meaning it is confidential.
Less common nowadays is “open” mediation, where the Agreement to Mediate sets out the circumstances in which the process will not be confidential. Open mediation is typically used in contentious parenting mediation, where the parties and mediator agree that the mediator may disclose information about the mediation in specified circumstances on specified matters, in the event they do not reach an agreement. In some open mediation agreements the mediator even agrees to provide evidence in court. Note that these terms have different meanings in the context of family court-connected mediation in Ontario. 
Without prejudice: This is the principle that serves to reassure parties that they may safely bargain in mediation without fear of legal prejudice. They may make offers which, if not accepted, cannot be used against them in court or arbitration. This is often referred to as ‘settlement privilege’. As noted above, the Supreme Court has developed an exception to settlement privilege.
Standard Exceptions: Family mediators, arbitrators and parenting coordinators are bound by certain standard exceptions to confidentiality and without prejudice protections. These include:
- Reporting to a Children’s Aid Society if a child is in need of protection
- Taking steps to warn or otherwise respond to a threat of imminent and serious harm, and
- Being required to disclose information by a court.
In the 2011 case of Children’s Aid Society of London & Middlesex v C.B and L.B. , Justice Harper made an order requiring a family mediator to give evidence as to facts within a mediation process that she conducted with the parties. The signed Agreement to Mediate included provisions for confidentiality that were not entirely clear. The Court found that notwithstanding the confusing contractual language, the intention of the parties was to enter into a confidential mediation process. Applying a Wigmore analysis, Justice Harper found that the evidence of the mediator was necessary given the extreme consequences for the children in the matter.
- Contractual terms: The Family Agreement to Mediate
Family mediation in Ontario is strictly voluntary, as is family arbitration and parenting coordination. The terms of the Agreement to Mediate signed by the parties and mediator govern the process.
In Benson v Kitt,  a party in a mediation sought to compel production of the file, including the confidential intake forms and the mediator’s notes from the screening for family violence. The request arose in the context of questioning in the litigation that erupted after the mediation failed to lead to a settlement. The parties had signed the Riverdale Mediation Family Agreement to Mediate, which contains detailed and relatively standard provisions for confidentiality of the process, and in particular, of the screening stage of the process. Justice Monahan interpreted the provisions to have their intended meaning and declined the motion for disclosure of the file. 
In an unreported 2019 decision, Arbuckle v Arbuckle,  Justice Lemon granted the request of a party to a mediation that the mediator be directed to provide their notes. In that case, there was no signed Agreement to Mediate. The Court noted that, in the absence of a signed Agreement to Mediate, the common law rule in Wigmore would indicate that the parties had a reasonable expectation of confidentiality in the mediation.
Referencing Bombardier, Justice Lemon then found that, given the absence of a signed Agreement to Mediate, there was no contractual term preventing the production of the records sought. Accordingly, the exception to settlement privilege prevailed and the mediator’s notes were ordered disclosed to help ascertain whether or not an agreement had been reached.
In Butler v Butler , the Court considered a closed Agreement to Mediate that provided:
(a) Paragraph 9 – All information, documents, notes, correspondence, calculations, memoranda of understanding, drafts or any other communications prepared or provided by any person for the purpose of the mediation shall, unless otherwise discoverable, be treated as without prejudice settlement discussions, and shall be inadmissible for any purpose, including the mediator’s file.
(b) Paragraph 11 – Closed mediation is a confidential, off-the-record process. Although the mediator cannot guarantee absolute confidentiality, the purpose of a confidentiality rule is to help parties feel comfortable freely exchanging information, ideas, options, offers and concerns. The parties agree not disclose any communications made during the mediation process to anyone who was not present, including memorandum of understanding and emails from or to the mediator or between themselves, unless they all consent.
The mediator had dictated a Memoranda of Understanding (which he termed a “binding agreement”) after a long day of mediation, in the presence of the parties and their counsel. Nothing was signed, and the parties and counsel did not review the MOU at the time. A week later, Ms. Butler wrote that she had not agreed to the MOU terms. Mr. Butler responded that he considered the MOU unambiguous and binding. The mediator replied that he too considered the MOU unambiguous.
On Mr. Butler’s motion to enforce the MOU, Justice Himel canvassed the law of settlement privilege and its exception, finding that in this case the exception applied. She noted that nothing in the language of the parties’ contract specifically renounced the exception to settlement privilege.
The parties’ mediation agreement contemplates that the materials may be discoverable (Paragraph 9) as may be required by law. They did not contract out of the settlement exception. The SCC’s recent ruling renders these materials discoverable. The impugned materials form the basis upon which the court can determine whether there is an enforceable agreement. The need to ensure that evidence (on the issue of the enforceability of an agreement) is before the court overrides the parties’ intention that the process be closed.
It is noteworthy that there was, in Butler, no evidence of post-mediation conduct on the part of either party that independently evidenced that an agreement was reached at the mediation. Evidence of post-mediation conduct was a factor that was considered to be important by the Supreme Court in the Bouvier decision.
In the end, the Court found that, on the evidence, there was no meeting of the minds and declined Mr. Butler’s motion.
PART THREE: BEST PRACTICES AND PRECEDENTS
- Family mediators should create, review and revise their process documents carefully. Counsel should review carefully the process documents used by the proposed mediator. Intake forms, Agreements to Mediate, progress notes, calculations and preambles to Mediation Summary Reports (MSRs) should, in plain language, set out the provisions for confidentiality and without prejudice negotiations, and the exceptions thereto, that is intended. Tab 1 includes sample language for a mediation intake form, the Agreement to Mediate, and draft calculations or other documents prepared by the mediator. Tab 2 contains a sample preamble to a Mediation Summary Report.
- Consider Including language in the Agreement to Mediate and the preambles to MSRs that contracts out of the waiver of settlement privilege. Sample language is included at Tab 1.
- If there is a contract-out of the settlement privilege waiver, mediator-arbitrators and parenting coordinators should establish a practice of converting agreements reached between the parties during the mediation phase of their process into Consent Awards. This requires clear language in the Med-Arb and Parenting Coordination Agreements that sets out the process by which a settlement can be made into a Consent Award. See the Riverdale Mediation Parenting Coordination Agreement for sample language for documenting agreements reached during the mediation phase of the process.
- Be sure that all parties to the mediation, including the mediator, sign an Agreement to Mediate before the mediation starts. This can be tricky with most mediators working remotely. Ensure that the Agreement contemplates signatures in counterparts and that reliable technology is used for signing documents.
- Do not provide or permit your client to participate in open mediation. There is little if any benefit to an open mediation process, and it has a fair amount of risk of unsuccessful and unsatisfactory outcomes and escalated costs. If a party insists on open mediation, ensure the terms are clear, that the degree to which the mediation is open is carefully defined and limited, and that the parties are well advised on the risks, limitations and costs of such a process.
- Follow the case law. Mediators and counsel working with mediators are advised to review all process documents carefully to ensure they are current and reflect the process intended.
PROVISIONS FOR CONFIDENTIALITY AND WITHOUT PREJUDICE
- Sample language for an intake form
The information that you provide to us in this document is intended to be kept confidential between you and Riverdale Mediation Ltd. as it is provided as part of a confidential dispute resolution process. No party may seek disclosure of what the other wrote on their intake forms and we will keep your information confidential.
There are however exceptions to confidentiality in family dispute resolution including our duty to report to a Children’s Aid Society if a child is at risk of harm; our duty to warn a person if there is a threat to their safety; or if a judge orders us to disclose information to the court.
By completing this intake form you agree to these terms. Please ask us if you have any questions.
- Sample clauses to include in the Agreement to Mediate
The mediation will be private. Other persons may attend with the consent of all parties, provided they agree to be bound by the confidentiality provisions herein.
CONFIDENTIALITY AND EXCEPTIONS
- The mediator and the parties shall keep confidential all information prepared, or provided, disclosed or exchanged during or for the purpose of the mediation, including progress notes, Mediation Summary Reports (MSRs), emails and other communications between the parties themselves, and the parties and the mediator, intern or the other third party. The parties will not divulge anything said or done during the mediation process to anyone who was not present, unless they agree otherwise. The parties will agree to reasonable sharing of information with all necessary third parties such as new partners, accountants, counsellors etc. The parties shall not take photographs of any part of this mediation, nor shall they post any information about it on any social media, in emails to third parties or in any other way.10. These confidentiality provisions apply to interns, co-mediators, observers and any third party participants.11. Either or both parties may have their lawyers attend the mediation. Other professionals or persons whose attendance is required by one or both parties may attend with the consent of all parties and the mediator, and shall agree to be bound by the confidentiality provisions of this agreement.12. The parties acknowledge that the fact that mediation has been held or that they entered into an Agreement to Mediate may not be confidential in relation to the court process. They authorize the mediator to disclose to the court, where appropriate, that a mediation has occurred, and whether or not an agreement was reached.13. We do not guarantee that mediation will be confidential; the mediator may disclose information about the mediation:
- to communicate and share documents with counsel and other third parties retained by one or both parties, in the mediator’s discretion;
- where ordered to do so by a judicial authority;
- where required to do so by law, including obligations to report a child in need of protection;
- where the information discloses an actual or potential threat to human life or safety;
- where either party makes a claim or complaint against the mediator, intern or Riverdale, or disputes fees;
- for research, education and program evaluation purposes, on a non-identifying basis; and
- for the purpose of intern candidate applications for professional certification, with all identifying information redacted or changed.
WITHOUT PREJUDICE SETTLEMENT DISCUSSIONS
- Mediation sessions are settlement negotiations. All communications that occur in furtherance of the mediation process are inadmissible in any part of any litigation, arbitration or other process for any purpose to the fullest extent allowed by law. The parties shall not summons or require the mediator, intern or any staff member to give or provide evidence in any proceeding. No transcripts, recordings, or photographs may be taken or made at any time.15. Without limiting the generality of the foregoing, the parties shall not include nor seek to include, for any purpose, in any part of any court or arbitral process:
- a) Communications of any kind made in furtherance of the mediation processb) Mediation Summary Reports or progress notesc) Documents attached to Mediation Summary Reports or progress notesd) Any aspect of the intake and screening process including intake forms, notes from the intake and screening process, or screening reportse) Views or suggestions made by the mediator about possible outcomesf) Admissions or apologiesg) Mediation briefs filed by the partiesh) Any part of the mediator’s file.
15.1 For further clarity, the common law exception to settlement privilege which permits the production or disclosure of without prejudice communications to prove a settlement is renounced. No evidence of any mediation communications shall be produced or disclosed in any legal proceedings relating to a settlement reached at or after the mediation, save for a written agreement containing the settlement terms that is signed by the parties and witnessed, or a Consent Order or Award incorporating the settlement terms.
- Sample language for calculations etc. prepared by the mediator
DRAFT, CONFIDENTIAL, WITHOUT PREJUDICE, INTENDED FOR LEGAL REVIEW.
Sample language for preamble for the Mediation Summary Report
This memorandum of understanding is a reflection of the mediator’s understanding of the parties’ discussions and agreements during their meeting. It reflects confidential and without prejudice settlement discussions and is covered by the confidentiality and without prejudice provisions of the Agreement to Mediate signed by the parties and the mediator. It is not a binding agreement nor is it evidence of one. Rather, it is intended to enable the parties to take the time and obtain any legal and other advice they need in order to understand and assess the implications of their discussions. The parties may change this memorandum and either party may change their mind about anything in this memorandum.
Neither party will provide this document to a court or arbitrator for any purpose without the written consent of the other.
This memorandum and any accompanying documents, such as a draft net family property statement, are not intended for general circulation or publication. They are not intended to be relied upon by the parties in the absence of legal review. We do not assume responsibility or liability for losses occasioned to you or any other party as a result of the circulation, publication, reproduction or use of this information contrary to the provisions of the foregoing paragraphs.
 Rudd v Trossacs at para 39.
 Rudd v Trossacs, para 26
 For further analysis on screening and safety planning in family dispute resolution and relevant case law, see Linton, H., Best Practices for Addressing Power Imbalance and Safety in Family Dispute Resolution Processes: Research, Protocols and the Law, 2020 CanliiDocs 3556.
 It is worth noting that the terms “open” and “closed” mediation have different meanings in the context of Ontario court-connected family mediation. The Agreement to Mediate required by the Ministry of the Attorney General in that context anticipates that the mediation will be confidential, whether it is open or closed. The only difference between the two options is in the amount of detail a mediator may include in the confidential Mediation Summary Report. In open mediation, the Summary Report “sets out proposed agreements made in mediation and a summary of the unresolved issues. It may include a brief summary of each party’s position but will not make recommendations nor provide details about communications during the mediation.” If the parties choose closed mediation, their Mediation Summary Report will set out “only the proposed agreements made by the parties.”
 Child, Youth and Family Services Act, s. 125(6)(d)
 Most family mediators are governed by a professional organization with Standards of Practice that address such duties. See for instance the Family Dispute Resolution Institute of Ontario Standards of Practice. As well see the Law Society Rules of Professional Conduct, Rule 3.3-3.
 Court Upholds Confidentiality of Mediation Intake Forms, Mediator’s File and Screening Notes, Nelson & Linton, January 21, 2019
 Arbuckle v Arbuckle, 2019 ONSC 7453, unreported decision attached to this paper at Tab 3.
 Benson, para. 14.