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News Update from Keith Seat's Mediation News for the 21st Century:
Supreme Court of Canada Rules that Standard Mediation Confidentiality Provisions Do Not Override Common Law Rule that Settlement Negotiations May No Longer Be Confidential Once Settlement Is Reached

After a settlement was purportedly reached in mediation, the parties began arguing over whether the agreed payment was for just one case or for a global settlement. The Supreme Court of Canada concluded that, while parties can contract for a higher level of confidentiality, a standard mediation confidentiality provision does not override a common law “settlement privilege.” The Court explained that the settlement privilege protects the confidentiality of settlement discussions, but contains an exception which allows the protected communications to be disclosed to prove the existence or scope of a settlement. That common law privilege and exception can be superseded by contract between the parties, but only if they are very clear, which was not the case with the mediation confidentiality clause in this case. Thus, the details of the mediation can be used to determine the scope of the settlement.

Union Carbide Canada, Inc. v. Bombardier Inc., 2014 SCC 35 (Can. May 8, 2014

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