By:  Patrick Ferland (partner) and Réginal Labonté (associate)

Parties who enter into a mediation process hope to reach a final settlement of their dispute and avoid any difficulty in enforcing it. There are times, however, when a party may be forced to go to Court to have the settlement agreement recognized and enforced – either because the other side reneges or because the parties disagree on the exact terms of their agreement.

While communications exchanged during mediation are in principle covered by the settlement privilege, an exception to the privilege will generally allow a party to prove the agreement reached during mediation – for example, in the context of an application to homologate the settlement.

The right to invoke this exception to the privilege is not absolute, however. In its recent decision in Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, the Supreme Court confirmed that parties entering into a mediation agreement may override (or modify the scope of) the exception to settlement privilege by prohibiting any disclosure of their exchanges, including in the context of an application for homologation. In so doing, the Court reiterated the principles it had established in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 and clarified their scope.

In Bouvier, the majority thus confirms that for a confidentiality clause to have such an effect, its provisions must clearly provide for same. It is not sufficient to provide that the mediation will be confidential; it must be clear that the parties wished to exclude any exception to the privilege, including for the purpose of demonstrating the existence of an agreement. Otherwise, to prohibit a party from proving the agreement reached in mediation would be “to disregard the primary intention of parties who enter into a mediation process while making it impossible to enforce a valid agreement that can be understood properly only in the context of the communications made during mediation” (para. 113). It would allow a party acting in bad faith to renege on the agreement reached in mediation (para. 105).

The minority, however, disagrees with the majority’s view on the application of the principles enunciated in Union Carbide (a commercial mediation case) in the context of family mediation, as was the case in Bouvier. For the minority, the specificity of the family mediation process, as well as the difficult and emotionally charged context of this type of mediation, militate in favour of prohibiting the introduction into evidence of any document or exchange emanating from it, including the summary prepared by the mediator.

The majority refuses to go that far. Although family mediation significantly differs from mediation in civil and commercial matters, the majority views the conclusion of an agreement resolving the dispute as being the main objective of both types of mediation. In its view, unless there is a clear provision to the contrary, a party should be able to prove that such an agreement was in fact reached during the mediation process.

The majority also emphasizes that a confidentiality clause cannot have the effect of removing the court’s supervisory power over matters of public policy (for instance, in family matters the parties cannot deprive the Court of its right to intervene in issues such as child custody). The majority also points out that there are other exceptions to the privilege, such as fraud or professional misconduct by the mediator (para. 96).

Regardless of the nature of the dispute being mediated, Bouvier reminds all parties that they should pay particular attention to the mediation agreement they are about to sign, and especially the confidentiality clauses it contains. Parties should obviously ensure that if a settlement agreement is reached, its terms are sufficiently clear to avoid any ambiguity, but they should also be able to determine in advance the nature of the evidence they will be able to adduce in Court in the event of a dispute as to whether an agreement was in fact reached.