Confidentiality is a key benefit of mediation (compared to a public court process). However, the principle of “confidentiality” is not well understood and often confused with “privilege” or “privacy” issues. In his Slaw post today (January 15 2015), Michael Erdle tackles this important issue by discussing two recent Canadian decisions: the Supreme Court of Canada decision in Union Carbide Inc. v. Bombardier Inc. and Jan Wong v. The Globe and Mail Inc, a decision of the Ontario Superior Court of Justice.
As Michael notes at the end of his post, it is critically important that mediators discuss with mediation participants:
– the wording of the Agreement to Mediate which spells out the extent to which the parties contract to keep information confidential (including situations in which one party may take steps to enforce an eventual agreement); and
– the eventual Settlement Agreement which should explicitly describe what, if anything, will be “confidential” and what happens if one party breaches those terms.
One last point: the Settlement Agreement (like any formal contract) should also include robust and well-considered provisions describing what happens if there is a dispute between the parties about the agreement (a dispute resolution clause – including mediation of course!).
This is a good time to review your standard wording. Let us know what you come up with!
Kari D. Boyle, Executive Director, Mediate BC Society
Image courtesy of Stuart Miles at FreeDigitalPhotos.net