Are Statements Made During Mediation Admissible In Court?

Can What Was Said During Mediation Be Used In Court?

Today we would  like to answer an important question: Can what was said during mediation be used in court? There is a big misconception that whatever parties say in front of their Calgary divorce mediators will be used by them in front of the judge. This could not be further from the truth.

First we must understand what mediation is. Mediation is a process through which two or more parties involved in a dispute try to find a solution to their problems with the help of a neutral third party. In mediations, parties involved in the lawsuit are given an equal opportunity to participate in deciding how their case should move forward in question of possible settlement.

What the parties say during the mediation proceeding is protected by law and those involved in it cannot be required to testify before the court about what was said during the mediation proceeding. This ensures that all parties have complete confidentiality during their participation in the mediation.

Are Mediation Statements Confidential?

Confidentiality in mediations is the most fundamental principle that has to be followed by anyone involved in convening, participating or even observing a mediation. This principle covers several aspects of the mediation process and includes confidentiality of statements made by all the parties, confidentiality of communications between participants and the Calgary divorce mediators, anonymity of the mediator and confidentiality of the information generated during a mediation process.

It is crucial that all the participants during a mediation process should understand the importance of confidentiality and know how to protect it. The fact that a lot of information becomes available after a divorce proceeding or separation can be used against not only the parties, but also their present and future partners. It is important in such cases to understand what constitutes a violation of confidentiality and the steps that can be taken to protect this sensitive information from being made public at any point of time.

Why Is Confidentiality Important In Mediation?

The importance of confidentiality in mediation is self-evident. Participants in mediation follow an agreement to keep what is said confidential, with few exceptions. It’s not that they are necessarily afraid of retribution; it’s that they feel the process will be more productive if their positions and needs are fully disclosed. If information is not kept confidential, it ruins trust and leads to less open communications.

What Is The Exception To The Rule In Mediation Confidentiality?

The cornerstone of mediation confidentiality is that information provided in a mediation will not be disclosed, either by the mediator or the parties, without the consent of the parties. There are exceptions to this rule:

  1. When the disclosure is necessary for criminal prosecution;
  2. When necessary to the fraud or coercion that led to the mediated settlement;
  3. To establish the existence or terms of a settlement agreement; and
  4. When necessary to impose sanctions or discipline.

In summary, parties to a lawsuit are generally not permitted to testify before the court about statements made during mediation. This includes statements they made to their attorneys and others while in mediation, with one exception—the court may read, or take judicial notice of, evidence admitted and documents produced during the mediation proceeding. This ensures that the integrity of the mediation process is respected for future usage in the same manner that it protects any subsequent proceedings from being tainted.