Family mediation is a form of private dispute prevention and resolution and is at the forefront of the civil justice system in Quebec with the reform of the Code of Civil Procedure in 2016.
With the guidance of a certified mediator, the main objectives of family mediation are to allow each party to be heard, engage in conversation and to identify each parties’ respective position, all with the aim of reaching a mutually favourable agreement. The confidentially of the mediation process is a means to encourage parties to actively participate without the fear that their discussions during this process will be divulged in subsequent legal proceedings.
However, the confidentiality of the mediation process is not absolute. The Supreme Court of Canada in the 2021 decision, Association de mediation familiale du Québec v. Bouvier, clarifies the scope of what is confidential in a mediation process. This decision involves a common law couple with two children from Quebec who participated in family mediation. At the end of the process, the parties reached an agreement, known as a “summary of mediated agreement” with respect to custody and support for the children, support for one of the parties and the parties’ respective rights in their former family residence.
Despite the agreement, a few years later, one of the party’s, madame, filed an action with the Superior Court asking for an increase in financial support for herself. The other party, monsieur, argued that the conclusions endorsed in the parties’ “summary of mediated agreement” must be upheld. However, madame denied the existence of this agreement and argued that it could not be admitted into evidence because of the rule of absolute confidentiality.
The Supreme Court of Canada did not maintain madame’s argument, as it based its decision on a commercial mediation case: Union Carbide Canada Inc. v. Bombardier Inc. which sets forth an exception to settlement privilege to allow confidential communications between parties during the mediation process to be disclosed to prove the existence and the terms of the settlement. The majority of the court concluded that this exception also applies to family mediation cases.
Although a settlement or agreement is not a legally binding contract in and of itself, it can become a binding agreement if signed by the parties or if the parties enter into a contract whose terms are identical to the “summary of mediated agreement”. In this case, the Supreme Court found that there was a binding agreement between the parties through testimonial evidence and post-mediation conduct of the parties.
A majority of the Supreme Court justices argued that absolute confidentiality of the mediation process cannot be used to undermine and defeat the very purpose of the mediation process which is meant to resolve disputes premised on the parties’ consent and adherence to the private process.
While confidentiality is and must remain the central tenet of family mediation, other safeguards are offered to protect vulnerable parties, such as the guidance of a certified mediator chosen by the parties, as well as judicial safeguards whereby any agreement is verified by a judge to ensure its validity and ensure that public order is respected. Mediation is a means to an end and absolute confidentiality must not prevent the parties’ intent.