A recent decision about mediation confidentiality is an important one for two reasons.
First, it explains the circumstances in which a court will disregard the confidentiality provisions of a private mediation contract. Second, it highlights the importance of ensuring that agreements to mediate are clearly drafted.
In CAS London Middlesex v. C.B. and L.B., Justice Harper ordered a family mediator to give evidence in court about what happened during a mediation, even though the parties had signed an agreement that provided for confidentiality.
The mediator had worked with the parents on custody and access issues. The parents had signed a “Closed Mediation Agreement”, which, notwithstanding its poor drafting, the judge found was intended to mean that their conversations with the mediator and each other in the mediation process would remain confidential, and that the mediator could not give evidence in court.
Subsequently, child protection concerns arose and the CAS became involved. In the protection hearing, one of the parents wanted the mediator to testify. The other parent pointed to the Closed Mediation Agreement to argue that the contract between the parents prevented either from asking the mediator to testify in court.
Justice Harper found that the Mediation Agreement itself was badly drafted and confusing. He was unable to interpret its various and conflicting terms around confidentiality, but found that the parties did intend the process to be confidential.
He required the mediator to testify all the same, applying what is known as the “Wigmore principle” of common law privilege.
This principle requires the court to answer four questions when considering whether private information should be admitted as evidence.
First, were the communications made on the understanding that they would not be disclosed? Justice Harper found that the communications between the parents and the mediator took place in a process that both parents and the mediator expected would remain confidential.
Second, is confidentiality a necessary element of the mediator-client relationship? Justice Harper answered “yes” to this question.
Third, is the mediator-client relationship one that society values? Again, the answer was “yes”. Justice Harper wrote about the importance of confidentiality in mediation. He quoted from another important decision, Rudd v. Trossacs (2006, 79 OR (3d) 687): “The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage.”
Fourth, and most important: if the mediator is ordered to testify in court, is the resulting damage caused to the mediation process greater or lesser than the benefit to the court of having the evidence? And here is where the rubber hits the road in this decision. Justice Harper noted that privilege (confidentiality) in mediation should not be set aside lightly. “It must only be done when the balance of ensuring the integrity and fairness of the litigation at hand commands that it be done.”
Because this was a child protection case involving serious allegations and extreme consequences for vulnerable children, the judge ruled that justice demanded that he hear the mediator’s evidence.
It seems to be the right thing to do in a case like this. And with the deepest respect for Justice Harper, it would have been helpful if the court had provided some deeper analysis of the phrase “the balance of ensuring the integrity and fairness of the litigation at hand commands that it be done.” The correct outcome of this delicate balancing act may seem obvious in this particular child protection matter. But what about a case where allegations of domestic violence are made? Or fraud? Almost all family litigation involves serious allegations that could affect children.
Because it is so rare for a judge to override mediation confidentiality, this is an important decision. It affects all mediators, not just those who work with separating parents. We hope that it is interpreted by other judges as it should: as a truly unique ruling that is very specific to its own facts. Otherwise it could severely undermine the critical foundation of voluntary mediation–confidentiality.
