A Wake-Up Call for Family Mediators!

09.22.2021

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By: Toronto Family Mediation Services President Hilary Linton

 

We have come across an unreported decision from 2019 that we think all mediators should read.

In Arbuckle v Arbuckle (2019 ONSC 7453), Ms. Arbuckle sought a copy of the mediator’s notes. She took the position that the parties had reached an agreement in mediation and that the mediator’s notes would prove it.

The mediator declined to produce his notes without a court order, as Mr. Arbuckle was not consenting to their release.

Mr. Arbuckle argued that no agreement was reached in the mediation, and that the notes of the mediator are subject to settlement privilege.

In this case, the parties had attended what they presumably understood would be a confidential and without prejudice settlement discussion. According to the evidence, they had attended mediation before (with a different mediator) and understood the expectations of the process.

 

However, there was no signed Agreement to Mediate. 

There was, therefore, no contract preventing the production of the mediator’s notes.

Justice Lemon of the Superior Court briefly discussed the law of settlement privilege, noting that where there is no Agreement to Mediate, the common law of settlement privilege will apply to documents from the mediation process. But in some cases, the court will enforce an exception to that privilege, including where the documents may be evidence of a settlement.

Because Ms. Arbuckle was alleging that a settlement was reached, and because the mediator’s notes could be evidence of such a settlement, and because there was no agreement that such notes would remain private and confidential, the Court ordered that they be produced.

 

This decision is a wake-up call to all mediators.

Confidentiality is a hallmark of family mediation. Clients expect, that and the mediator has a duty to protect the confidentiality of their process. This is one of the main selling features of this out-of-court process.

 

To preserve confidentiality (and their reputations) mediators should follow these best practices:

1 – always have parties, mediators and all third parties sign an Agreement to Mediate that provides for confidentiality of all communications and documents prepared for the mediation

2 – ensure that all work product has a preamble that reiterates the confidential and without prejudice nature of the document

3 – ensure that the Agreement to Mediate and all work product makes clear that a Mediation Summary Report, the mediators’ notes and any other documents arising from the mediation are not to be produced in a court, cannot be relied on as evidence of a settlement absent them being signed and witnessed and

4 – do not have parties sign Mediation Summary Reports and never witness their signatures if they do.

 

To read the full decision click here.

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