September 2018
PFD | Family

How confidential is the mediation process?

By Amanda Taddeo Lawyer

The Code of Civil Procedure stipulates that all that is said or written as part of the mediation process shall remain confidential.

However, in the recent case of Bisaillon v. Bouvier, 2017 QCCS 3788 (CanLII), the Honourable Benoît Moore of the Superior Court of Québec allowed summary agreements to be submitted as evidence in divorce proceedings.

Parties to a mediation enter into - but do not sign - summary agreements regarding the issues in dispute. To become binding, an agreement must be confirmed by the court.

The ruling by Justice Moore establishes that, in 2012, amidst the breakdown of their relationship, the parties took part in five mediation sessions during which they were able to come to an agreement on certain issues, including custody and property division. The mediator drafted a summary of the agreements, which was provided to the parties. The summary was not signed.

After receiving the summary, the parties partially honoured their commitments and paid the sums outlined in the agreement without having the document confirmed.

The plaintiff never questioned the existence of the agreement until summer 2014, when she initiated proceedings regarding the sharing of the residence. Her former spouse based his defence on the summary of the agreements reached during mediation. The plaintiff was strongly opposed to the submission of the summary, arguing that the agreements reached in mediation were confidential.

Following an extensive analysis of the evidence and law, the court concluded that the parties had implicitly renounced the confidentiality rule when they partially executed the agreements, adding that, in practice, the summary of the agreements submitted as evidence is proof of an implicit indication of consent to an agreement.

The decision serves to highlight the importance of having an agreement reached in mediation confirmed to avoid a dispute in the future. We therefore strongly suggest that you speak with a lawyer. The experts in the family law group at Prévost Fortin D'Aoust are available to guide you through the process.

The judgment has been appealed, and we will keep you informed of any new developments. Stay tuned!