If mediation is a voluntary process of self-determination, should mediators accept cases where one party shows signs of mental instability?
This question was somewhat answered by the Supreme Court of Canada in the 2009 Rick v Brandsema decision.
In that case, the SCC upheld the decision of a trial judge, who had set aside a separation agreement following a 29 year marriage. The parties had reached their agreement with the assistance of lawyers and mediators.
The trial judge found that the agreement was unconscionable because the husband had concealed significant assets, and also because he exploited the wife’s mental instability. The Court of Appeal (B.C.) had disagreed with the trial judge; but the Supreme Court overturned the appeal decision, siding with the trial court.
The decision is a “must read” for all family mediators.
It talks about how the period following a relationship break-up is uniquely difficult. Given the emotional vulnerabilities of the parties, special care must be taken by mediators to ensure that the process is as free as possible from informational and psychological exploitation.
This is the first case that I teach to my students. This past January, several of the law students I taught at the University of Western Ontario chose to write their case comments on the decision. Here is one of those case comments, written by third year law student Michael Prosia.
Michael’s argument is that the court did not need to rely on the psychological exploitation argument. There was sufficient evidence of non-disclosure to justify setting the agreement aside, he says. And, the evidence at trial did not support the court’s finding of emotional exploitation in any event.
Whether you agree with his views, Michael’s comment is worth a read.