Confidentiality v Integrity in the mediation process

Confidentiality is one of the cornerstones of mediation; the principle that what is revealed during the process may not later be used in court and that it is ‘without prejudice’ if there is a failure to reach a mediated settlement. This principle gives many the confidence to attempt to reach a mediated settlement who would otherwise be reluctant to do so. It also encourages parties to be open and candid throughout the process.



Of course, confidentiality is not absolute and is always subject to the law of the land and the well being of other people. The welfare of children who may be at physical or emotional harm is one such example of where confidentiality is limited, but it also extends to other parties including where there may be a risk of harm or, even, self-harm. However, things become a little more equivocal when it comes to the ‘evidence’ that parties bring to the process. The British Columbia Supreme Court, in Canada, recently considered this issue in Ramsden v. Ramsden 2013.



The court was asked to order production of two documents produced by the husband during a mediation which had not resulted in settlement. The husband objected on the basis that the documents were privileged and not producible since they were created for the mediation process.


The wife argued that the husband breached the mediation agreement (containing confidentiality clauses) and was not able to rely on it since the documents in question were created by the husband knowing they were inaccurate and misleading.



The husband did not deny that the documents were inaccurate, he simply argued that the Court was limited to reviewing the revised versions he produced for this application.


Master Caldwell, overseeing the case made the following ruling:



[17] I am fully in agreement with the position and the authorities that mediation is an important option to the litigation process, that it is to be encouraged and that mediation privilege is important to that process; I am also of the view that there is a significant difference between legitimate mediation and attempted ambush by deception.



[18] There is a reason why parties to a mediation process are required to sign and abide by an agreement to “disclose fully and honestly all the information and documents relevant to the issues being mediated.” The litigation process contains the safeguards of cross-examination and the watchful eye of the court to ferret out truth from fiction. The mediation process relies on honest, full disclosure and the integrity of the system itself, particularly within the context of matrimonial disputes.



[19] Where, as here, there is every appearance of evasiveness at best and deceit at worst the court must rally to support the integrity of the true mediation process in order that the immediate, as well as future, participants in that process may have assurance that it is a process with legitimacy, not simply a shell game where they “pays their money and takes their chances”. This is all the more the case where the parties have no alternative but to attempt mediation before they can have access to the court system.



[20] The order sought, requiring the production of and allowing the use of the Form 8 and the employment letter will, in my respectful view, not discourage parties from entering into mediation; it will rather encourage parties to enter into the mediation process knowing that they will be protected by the court in the event of deceptive disclosure by another of the parties. To protect such documents from disclosure would, on the other hand, lend court approval to practices of deception within the mediation process. Should that occur, mediation would cease to have any meaningful role, particularly in resolving matrimonial disputes.



Some people may argue that the court’s ruling undermines the principle of confidentiality and will make parties less inclined to be candid throughout the mediation process. On the other hand, the ruling is made on the basis that the court believes that revealing deliberately falsified documents increases the legitimacy and integrity of the process because the parties will have a greater confidence that the ‘evidence’ produced may be scrutinised if it is found to be deliberately inaccurate or misleading.