by, Cliff Nelson, Riverdale Mediation & Hilary Linton, Riverdale Mediation and mediate393/311/47

Few legal principles are more sacrosanct than settlement privilege. In family law, where the legal, emotional and physical safety of family mediation is directly connected to its effectiveness, the principle is even more important. And the most sacred of all parts of a family law file are the notes generated by the mediator in what is known as the screening process and the confidential intake forms completed by clients to initiate it.

Screening is the mandatory first step undertaken by professionally certified family mediators. It is a confidential meeting between each client and the mediator to assess whether the key principles of family mediation— a voluntary, informed process of self-determination that does no harm— can be met in the particular case. Its importance for an effective, fair and safe mediation cannot be understated. It is a long- established best practice endorsed by every Canadian professional mediation organization.

Screening is “super-confidential”. It is covered not only by the three-way confidentiality provisions between the mediator and the parties, but also by a specific agreement whereby each party undertakes to not seek production of any screening information relating to the other party. The reasoning for this is self-evident: screening relates to issues of power imbalance including intimate partner violence and, in cases involving risk, disclosure of this information could jeopardize the safety of a party or child. There is no case where a court has compelled disclosure of screening notes or intake forms and for good reason.

Screening is what enables mediators to design negotiations that meet the needs of each client. After screening, a confidential mediation will take place, unless the parties have signed an Agreement to Mediate that provides otherwise. Everything that happens in the mediation process is confidential, as are all intake forms, notes, documents and draft mediation reports.  The only exceptions are where a child is in need of protection, a person’s safety is at risk, or otherwise in accordance with the law.

This is mediation 101.

So it was (very) surprising to see that in December (Benson v Kitt, 2018 ONSC 7552) , a client tried to compel production of the file, including the intake forms and the mediator’s notes from the screening process, of a senior Toronto family mediator*.

Predictably and thankfully, the court made short work of this argument.

The issue to be resolved on a motion before P.J. Monahan, J had to do with compelling a wife to answer questions she had refused to answer when she was being questioned at a special examiner’s office.

As part of the questioning, the husband asked the wife to produce an earlier mediation file, together with the mediation intake form. That mediation concerned issues of child support. As a result of the mediation, the parties entered into minutes of settlement, which were to be incorporated into an amending separation agreement. However, circumstances arose that seem to have prevented that from occurring.

It is not necessary, for this article, to set out any other facts of the case here; suffice it to say that the case “exploded” to the point that senior family law lawyers on both sides continued a robust litigation war.

As part of this battle, the respondent husband made the request for the mediation file, mediation intake form and screening notes of the mediator.

In refusing to order the documents requested by the husband, P. J. Monahan, J stressed that the concept of settlement privilege, which arises in common law, protects confidential communications between spouses when they are trying to settle a dispute.

The policy behind this concept is to give each party the confidence to know and understand that they can speak freely and without fear of legal consequence during a private mediation (or, for that matter, during a private negotiation, as long as the goal is to arrive at a settlement).

Equally important in this case was the fact that the mediator had the foresight to have both parties sign a mediation agreement containing a confidentiality clause. This contractual provision made it quite clear that the mediation process was private, and that any disclosure of the mediation file would be inadmissible in a court or arbitration. The clients each specifically acknowledged that intake forms and screening process is confidential between the mediator and that client.

Notwithstanding this confidentiality clause, the husband’s counsel argued that the negotiations were only inadmissible “to the extent permitted by law ” , as that phrase appears in the clause. Counsel submitted that there was some ambiguity to the agreement, arguing that this phrase suggested that the parties contemplated disclosure of the very materials the respondent was requesting.

The judge gave this argument short shrift, stating:

In my view, the words “to the extent permitted by law” suggest precisely the opposite,

namely that disclosure obtained during the mediation shall be inadmissible unless

there is some positive legal requirement for disclosure.

As none was identified, the ruling went against the husband.

In a perfect world, Justice Monahan would have gone further and specifically acknowledged the critical importance of maintaining the “super-confidentiality” of intake forms and screening notes, as this topic clearly continues to befuddle some.

It is comforting to know that settlement privilege at a mediation remains protected. Even so, a mediator will want to ensure a comfortable night’s sleep by having a signed contract in place.

*For the purposes of full disclosure, the senior Family mediator is an Associate at Riverdale Mediation.