Disputants Await Clarification Of Mediation Privilege’s Boundaries

Today, Canadians are mediating their disputes in record numbers. One partial explanation for this phenomenon is that mediation purports to keep discussions between parties confidential, traditionally backstopped by settlement privilege. But the extent to which parties can pierce this bubble of confidentiality and use information disclosed in the course of mediation in subsequent court proceedings is an evolving issue.

The Supreme Court of Canada recognized the importance of confidentiality to the mediation process in its recent decision in Bombardier Inc v Union Carbide Canada Inc. Quoting from an article by Owen V. Gray, Justice Wagner noted that confidentiality encourages parties to engage in free and frank discussions without the worry that current or potential adversaries, including public authorities, will use their communications against them later. Equally, parties might be worried about prejudicing commercial or personal relationships.