Family Law Mediation: Protecting Your Best Interests

Jan 25, 2022

There are a lot of benefits to family law mediation. Mediation has been shown to be quicker, less costly, and generally produce positive outcomes for both parties.

In addition, some choose mediation with the understanding that the discussions will be held confidentially. There is a fear that once a case goes to court, documents can be entered into record, and made available to the public.

And while confidentiality is central to mediation, it is also important to know its limits. An experienced family lawyer or family law mediator can help you understand your rights and protect your interests.

Open and Closed Mediation

Before entering into any mediation, including family law mediation, you should be clear on “open” and “closed” mediation. The differences are fairly simple and intuitive:

Open mediation – if you go to court, the mediation will not be private, and the information raised in mediation sessions can be shared in court.
Closed mediation – information raised in mediation is private and confidential and cannot be shared in court.

There are some exceptions to confidentiality in closed mediation sessions. For example, mediators can share information if there are concerns involving children’s safety, or the wellbeing of one of the parties involved in mediation.

Mediation sessions are closed unless both parties agree to open mediation. However, a recent case in the Supreme Court of Canada highlighted the importance of talking to your lawyer or trained mediator about what is confidential, and what might be binding.

Supreme Court Case 2021 SCC 54: Association de médiation familiale du Québec v. Bouvier

The Supreme Court Case 2021 SCC 54 involved common law spouses who were together for more than three years, and had two children. The couple took part in family law mediation sessions with a certified mediator when their relationship ended.

Children’s care, the family home and other matters were raised as part of the family dispute resolution process. When the family law mediation sessions ended, the mediator prepared a document called the “summary of mediated agreements” outlining how parties had agreed to settle.

After mediation, one party (the plaintiff) filed a lawsuit in Quebec’s Superior Court asking for more money than what was laid out in the summary of agreements.

The second party (the defendant) said they should stick to the terms of the signed contract and summary. In response, the plaintiff denied that the contract existed, and objected to the summary being used as evidence in the court proceedings.

The plaintiff argued that a rule of absolute confidentiality in the family law mediation sessions protected the summary. Eventually, the case made its way to the Supreme Court of Canada.

Settlement Exception to Confidentiality

The Supreme Court acknowledged confidentiality in family law mediation. However, the Court also pointed to a “settlement exception”. This exception allows parties to a settlement to prove it exists. The mediated contract and summary were not identified as non-binding, and could therefore be entered as court documents.

Your Lawyer Can Help Protect your Confidentiality…and Your Best Interests

In the Supreme Court case, the contract and summary showed proof of a settlement, and was able to be raised as evidence. If it had been handled differently, the documents could have remained out of court.

When creating documentation like a summary or memorandum of understanding, mediators need to be clear whether or not any agreement is intended to be binding.

Kelly Jordan faced a similar issue in the Ontario Superior Court. The decision in that case was the opposite. Kelly had made sure that the memorandum of understanding from the divorce mediation session was clearly stated as non-binding.

As a result, the judge ruled there was no legally enforceable contract, and the plaintiff was able to contest the terms of the mediated settlement in court.

Kelly D. Jordan Family Law Firm Has the Experience and Advice Your Need

For family law mediation, court mediation, Separation Agreements, and divorce proceedings, you can count on the Kelly D. Jordan Family Law Firm. We offer creative legal thinking at its best. We listen to what matters to you, and provide the advice you need to protect both you and your family. If you are looking for divorce mediation or a divorce lawyer in Toronto, contact us today.

Sources:

Government of Ontario: Family Mediation
https://www.ontario.ca/page/family-mediation

Supreme Court of Canada – Cases in Brief
https://www.scc-csc.ca/case-dossier/cb/2021/39155-eng.aspx