A recent decision of Justice A. Himel of the Newmarket Superior Court of Justice is instructive for family mediators, parties seeking mediation services and their lawyers.
Butler v Butler addresses the question of mediation confidentiality, and whether an unsigned Memorandum of Understanding (MOU) can be enforced as an agreement.
After a long day of closed (eg/confidential) mediation, the mediator dictated a summary of the terms of the agreement he believed the parties had reached. He dubbed the MOU a “binding agreement”. Neither the parties nor their lawyers, who attended the mediation, had the opportunity to review the MOU at that time. The mediator specifically invited them to send him any concerns they might have about the MOU.
A week later Ms. Butler submitted concerns, saying she did not agree with what was written in the MOU. Mr. Butler responded that he felt the MOU was unambiguous and the mediator replied that he saw no ambiguity either.
Mr. Butler sought a court order enforcing the MOU, which Justice Himel denied.
Two issues of importance were addressed:
1. Can information about what took place in a mediation be put before the court as evidence of a settlement?
This issue was addressed by the Supreme Court of Canada not too long ago in Association de mediation familiale du Quebec v Bouvier, 2021 SCC 54. The SCC provided a template for when the confidentiality of closed mediation can be overridden for the purpose of proving that an agreement was reached in the mediation. In that case the court found that the parties had conducted themselves, after the mediation, in a manner consistent with the alleged agreement reached at mediation. This subsequent conduct was independent evidence of a settlement, which created a basis for permitting evidence from the mediation itself to prove the terms of the agreement that had been reached.
This is known as an exception to the settlement privilege that normally attaches to mediations. “A settlement exception allows the court to recognize and protect the confidential nature of family mediation while also allowing, as an exception, communications to be disclosed despite confidentiality if their disclosure is necessary to prove the existence or scope of an agreement.”
Justice Himel found that the exception to settlement privilege permitted her to accept and consider the materials from the mediation that were before her: the written MOU, emails from the mother’s counsel, the father and the mediator.
She noted that parties can, in their Agreement to Mediate, contract out of this exception— something that was not done in this case.
2. Should the MOU be enforced?
The court found that the MOU does not meet the requirements of an enforceable domestic contract under the Family Law Act, namely it is not in writing, signed and witnessed. While the court can enforce a settlement even where there is non compliance with this section of the Act, there must be a meeting of the minds for an agreement to exist.
In this case Her Honour found that the evidence did not support a ruling that there had been a meeting of the minds. Some factors she considered:
- The lengthy MOU was dictated in the evening after a long day of negotiations.
- The parties did not review it at the time, nor did their counsel.
- The mediator had specifically invited the parties to send him any concerns and offered a process to deal with them, which never took place.
- Butler wrote within days of the mediation to advise that she had not agreed to some of the terms in the MOU.
As a result the motion was dismissed with costs.
This was surely an expensive failed mediation for both parties. Unfortunately for both parents and their children, this matter now appears headed for trial.
The lessons for mediators and counsel include:
- Pay attention to the language of the Agreement to Mediate. At Riverdale, we specifically contract out of the exception to settlement privilege. So do court-connected mediation processes in Ontario. This makes a lot of sense. We do not want our mediation process opened up the way this one was. If the parties want to reach an agreement they should sign one; otherwise a MOU is not and should not be considered binding.
- Plan the mediation to leave time at the end to draft minutes of settlement. We often ask counsel to come to the mediation with a draft that is worked on as the mediation progresses.
- Build in opportunities, during and particularly at the end of a long mediation, for parties to reflect, review, confirm and commit. Slow the mediation down in order to ensure the parties are truly committed to the proposed outcomes.
- Do not rush your mediation. It is not reasonable in most cases to continue beyond 5 pm. People get tired, hungry and can lose their attention and focus. Do not take that kind of risk; put the matter over to early the next morning if possible.
- Dictating settlement terms may not be the best way to ensure a meeting of the minds and commitment.
- It is generally not the role of the mediator to express a view as to whether or not their MOU is clear and unambiguous. Mediation and its outcome belongs to the parties, not the mediator. If a party expresses concerns that a MOU does not reflect what they agreed to, this should be taken seriously by the mediator as an indication that there may not be a meeting of the minds. The concern needs to be explored.
- If the mediator offers a post-mediation process to address concerns, be sure to follow that process. Keeping procedural commitments builds confidence and trust in the fairness of mediation.
- Mediation is a voluntary process of negotiation. Parties need to feel heard and be satisfied that they understand and can live with the settlement on the table. Every step of the mediation process should be designed with this goal in mind.
This is yet another succinct and helpful decision from a judge who understands family mediation well.